Opinion
No. 05-15-01367-CR
02-07-2017
LARRY MORGAN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1 Dallas County, Texas
Trial Court Cause No. F-1476149-H
MEMORANDUM OPINION
Before Justices Francis, Stoddart, and Schenck
Opinion by Justice Schenck
Larry Morgan appeals his conviction for murder. In three issues, he argues the evidence is insufficient to show that his conduct transpired in the course of or in furtherance of robbery or theft and that the trial court erred in refusing to instruct the jury on manslaughter. In a fourth issue, appellant contends the judgment should be reformed to show he was convicted of the lesser included offense of murder. We modify the judgment and affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
On August 4, 2014, Patrick "Bird" Perkins received a call from his sister-in-law Paula Harris inviting him to come to her home at a Dallas apartment complex known as "The Pinks." When Bird arrived, he was intoxicated with marijuana and phencyclidine. He walked around The Pinks selling drugs to the residents, carrying a blue plastic shopping bag that contained some of his clothes, and speaking loudly about having money.
That same day, appellant and his friend Kendrian Walker were also at The Pinks. They had smoked some marijuana together, but Walker had more to sell, so they began walking around the apartment complex where they passed by Bird several times. After walking for an hour or so, appellant asked Walker for a bag of marijuana, but Walker refused to give it to appellant without payment. Then appellant said Bird owed him money and told Walker he was going to get it. Appellant approached Bird, and they talked briefly before appellant grabbed at Bird's blue plastic shopping bag. Bird refused to let go of his bag. Appellant stepped back and pulled out his gun. Bird released his bag, then appellant shot Bird. Appellant and Walker ran off together. Appellant handed the gun to Walker who threw it away in some bushes. Appellant and Walker then ran off in different directions. Harris's aunt picked up Bird's bag and later turned it over to the police.
Appellant was charged by indictment with the offense of capital murder. The indictment alleged appellant killed the deceased while committing or attempting to commit a robbery of that individual. The charge contained the lesser included offenses of murder under the felony murder statute and aggravated robbery. Appellant pleaded not guilty, and a jury convicted him of the lesser included offense of murder. The jury then sentenced appellant to thirty-seven years' imprisonment and a fine of $10,000.
DISCUSSION
I. Sufficiency of the Evidence
In his first and second issues, appellant contends the evidence is insufficient to support his conviction for "felony murder." He argues that because he abandoned the robbery before the shooting, the evidence is insufficient to establish conduct undertaken in the course of robbery or theft.
A. Standard of Review & Applicable Law
When conducting a legal sufficiency review, a court must ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). In so doing, we assess the evidence in the light most favorable to the prosecution. Id. This same standard applies equally to circumstantial and direct evidence. Burden v. State, 55 S.W.3d 608, 613 (Tex. Crim. App. 2001). We defer to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). After giving proper deference to the factfinder's role, if any rational jury could have found all the essential elements of the offense beyond a reasonable doubt, we will uphold the verdict. Narvaiz v. State, 840 S.W.2d 415, 423 (Tex. Crim. App. 1992).
A person commits murder under the felony murder doctrine if he commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, of in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual. TEX. PENAL CODE ANN. § 19.02(b)(3) (West 2011).
B. Application of Law to Facts
Appellant argues the evidence shows he abandoned his attempt to take Bird's bag before he shot Bird. He bases this argument on the testimony of three witnesses who told the jury that when appellant was unable to physically remove the bag from Bird, he released the bag, stepped back from Bird, raised his gun and shot Bird. Appellant points to (i) Wilson's testimony that appellant "stood back" before raising his gun and Bird let go of his bag, (ii) Walker's testimony that he did not see any bag, and (iii) Harris's testimony that appellant did not take Bird's bag after the shooting.
We disagree. The evidence shows appellant intended to get money from Bird. He told Walker that Bird owed him money, then appellant approached Bird and briefly talked with him. Walker testified he heard Bird tell appellant that appellant would not get anything from Bird and that appellant would "have to kill" Bird. The jury heard testimony from Harris and another witness, Adoshay Wilson, that they saw appellant and Bird fight over the bag Bird was carrying. Bird would not let the bag go, so appellant released his hold. Wilson saw appellant stand back and pull out a gun to point at Bird who held up his hands. Harris testified appellant's attention was focused on Bird's bag as he pointed his gun at Bird. Appellant then shot Bird.
Although Walker said he did not see Bird's bag or any like it, we note other witnesses saw the bag, and we defer to the jury to resolve any conflicts in the testimony. See Isassi, 330 S.W.3d at 638. Appellant told Walker Bird owed appellant money, Walker saw appellant approach and talk to Bird, and heard Bird tell appellant that he would not get anything from him, and appellant would "have to kill" Bird. Harris said that after the shooting, appellant did not take Bird's bag. The court of criminal appeals has held that "proof of a completed theft is not required to establish the underlying offense of robbery or attempted robbery." Bustamante v. State, 106 S.W.3d 738, 740 (Tex. Crim. App. 2003). As for appellant's argument that his actions in stepping back before pointing his gun at Bird or that either his or Bird's actions in letting go of Bird's bag meant the murder was not committed in furtherance of or in the course of committing a theft or robbery, again we disagree. Appellant presents the evidence as separate, divisible events but the evidence shows this was a continuous occurrence. Accordingly, we conclude appellant's argument that he had abandoned the robbery before the shooting is not supported by the record. The evidence is sufficient to support appellant's conviction for murder. We overrule appellant's first and second issues. II. Instruction on Lesser Included Offense
In his third issue, appellant argues the trial court erred by refusing to include a jury instruction on manslaughter as a lesser included offense of capital murder when the evidence showed he had abandoned the robbery when he "accidentally" or recklessly shot his gun. The State counters that the trial court properly denied appellant's requested instruction because there was no evidence that appellant was guilty only of the lesser offense.
We apply a two-step test to determine whether an instruction on a lesser included offense should have been given to the jury. Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012). First, we determine if the proof necessary to establish the charged offense also includes the lesser offense. Id. The State concedes manslaughter can be a lesser included offense of capital murder. Mathis v. State, 67 S.W.3d 918, 925 (Tex. Crim. App. 2002). Thus, we move to the second step and consider whether there is some evidence that would permit a rational jury to find that, if the appellant is guilty, he is guilty only of the lesser offense. Cavazos, 382 S.W.3d at 382. We review a trial court's decision to submit or deny a lesser included offense instruction for an abuse of discretion. Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004).
The jury was instructed to find appellant guilty of capital murder if he intentionally or knowingly caused the death of Patrick Perkins in the course of committing or attempting to commit robbery. A person commits manslaughter when he recklessly causes the death of an individual. TEX. PENAL CODE ANN. § 19.04(a) (West 2011). Conduct is "reckless" when the actor "is aware of but consciously disregards a substantial and unjustifiable risk that . . . the result will occur." Id. § 6.03(c) (West 2011). A person commits felony murder by committing or attempting to commit robbery, and in the course of and in furtherance of the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual. Id. § 19.02 (b)(1).
Here, Walker testified that appellant pointed and swung his gun at Bird but it did not appear to Walker that appellant intended to shoot Bird and kill him. However, even if appellant recklessly—rather than intentionally—caused Bird's death, this is not manslaughter. A homicide committed in the course of a robbery is, at the least, the offense of felony murder. Lee v. State, 860 SW2d 582, 587 (Tex. App.—Houston [14th Dist.] 1993 pet. ref'd); Gadsden v. State, 915 S.W.2d 620, 623 (Tex. App.—El Paso 1996, no writ). The record would also have to contain some evidence that would allow a reasonable jury to find that appellant committed only the offense of manslaughter without finding he killed Bird in the course of robbing him before he would be entitled to a lesser included offense instruction. While appellant argues he never intended to rob Bird, or if he did, he abandoned the robbery before the shooting, nothing in the evidence supports such a finding. To the contrary, the evidence overwhelmingly demonstrates that appellant intended to rob Bird and never effectively abandoned that effort. Accordingly, we overrule appellant's third issue. III. Modification of the Judgment
In his fourth and final issue, appellant contends the judgment should be reformed to show appellant was convicted of the lesser included offense of murder instead of "capital felony." The State agrees with appellant's contention and adds that the judgment should be reformed to show the statute for the offense is "19.02 Penal Code" and that the degree of offense is "1st degree felony." The record shows the jury found appellant guilty of murder, not capital murder, which is a first-degree felony, and the judgment erroneously reflects appellant was convicted of "capital murder," the statute for offense is "19.03 Penal Code," and the degree of the offense is "capital felony." See TEX. PENAL CODE ANN. § 19.02. We have the authority to modify the trial court's judgment to make the record speak the truth. TEX. R. APP. P.43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992). Accordingly, we sustain appellant's fourth issue and modify the judgment to reflect (i) appellant was convicted of the offense of murder, (ii) the statute for the offense is "19.02 Penal Code," and (iii) the degree of offense is "1st degree felony."
CONCLUSION
As so modified, we affirm the trial court's judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE DO NOT PUBLISH
TEX. R. APP. P. 47 151367F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 1, Dallas County, Texas
Trial Court Cause No. F-1476149-H.
Opinion delivered by Justice Schenck, Justices Francis and Stoddart participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED to reflect that appellant was convicted of the offense of murder, the statute for the offense is "19.02 Penal Code," and the degree of offense is "1st degree felony."
As modified, the judgment is AFFIRMED. Judgment entered this 7th day of February, 2017.