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declining to address arguments by appellant where they were inadequately briefed
Summary of this case from Derouen v. StateOpinion
NO. AP-77,094
04-12-2023
Dameon Jamarc MOSLEY, Appellant v. The STATE of Texas
Jeffrey Haas, Houston, for Appellant.
Jeffrey Haas, Houston, for Appellant.
OPINION
Hervey, J., delivered the opinion of the Court in which Keller, P.J., Richardson, Yeary, Newell, Walker, and McClure, JJ., joined.
In November 2019, a jury convicted Appellant of capital murder for fatally shooting gas station employee Billy Stacks in the course of committing or attempting to commit a robbery. TEX. PENAL CODE § 19.03(a)(2). Based on the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, Sections 2(b) and 2(e), the trial court sentenced Appellant to death. See TEX. CODE CRIM. PROC. art. 37.071, § 2(g). Direct appeal to this Court is automatic. Art. 37.071, § 2(h). Appellant raises thirteen points of error. We affirm the trial court's judgment of conviction and sentence of death.
Unless otherwise indicated, all subsequent citations in this opinion to "Articles" refer to the Texas Code of Criminal Procedure.
Points of error one through seven raise challenges to Texas's statutory death penalty scheme and will be addressed together at the end of the opinion. We will begin our analysis with point of error eight.
I. BACKGROUND
Appellant and two co-conspirators, Kedarius Oliver and LaMarcus Hannah, planned to commit a robbery at a Conoco Truck Express gas station in Tyler, Texas. On January 28, 2017, Hannah drove the group to the Conoco in Appellant's Dodge Avenger. Appellant and Oliver exited the vehicle on a road behind the Conoco. Hannah stayed with the car as the getaway driver.
Appellant approached the Conoco's entrance on foot while Oliver acted as a lookout. Once Oliver confirmed that no customers were in the front of the store, Appellant entered at approximately 3:37 a.m. He was carrying a revolver and wearing a black hoodie, dark jeans, a ski mask, and white gloves. Appellant approached the cash register with his finger on the revolver's trigger, jumped over the service counter, and confronted Stacks, the clerk. During a brief struggle between the two men, the gun discharged twice. Stacks was struck in the forehead and the left shoulder and fell to the ground. After Stacks collapsed, Appellant took approximately $1,700 from the cash register and fled the scene. Several individuals in a separate room at the back of the Conoco heard the shooting and called 911. Stacks was conscious when paramedics arrived but died the next day after being taken off life support. Appellant was indicted for capital murder.
This conduct was captured on the station's surveillance cameras. At trial, Appellant acknowledged that he was the person depicted on the video.
At trial, Appellant argued that, although he intended to rob Stacks at gunpoint, he did not intend to kill him. Appellant claimed that the gun went off accidentally during the struggle, so he was guilty only of felony murder. See TEX. PENAL CODE § 19.02(b)(3).
II. INEFFECTIVE ASSISTANCE OF COUNSEL
During the guilt phase of trial, the State presented the testimony of Emily Stephenson, an ICU nurse who monitored Stacks while he was on life support. She testified that Stacks's wife, Cheryl, approached the nursing team with the decision to take Stacks off of his ventilator and life-sustaining medications. The prosecutor asked Stephenson to describe Cheryl's demeanor when she made that decision. Stephenson responded:
She was very -- very sad. I mean, it was just a very overall somber environment. It was, of course, a very difficult decision to come to, to decide that this is what Mr. Stacks would have wished, you know, considering the outcome of his injury.
And she was overall very sad. And there was another [family] member that was with her as well. He was very sad as well.
The prosecutor also asked Stephenson to describe the mood in the room as Stacks was taken off of life support and pronounced dead. She testified:
It was very heartbreaking, and it was very sad. I remember Mrs. Stacks was sitting beside him on the bedside. Like I said, she was holding his hand, and she was telling him: It's okay. You can let go. And overall, it was just a very sad environment in the room.
Trial counsel did not contemporaneously object to this testimony.
In his eighth point of error, Appellant claims that his trial counsel was ineffective for failing to object to Stephenson's testimony. Specifically, Appellant asserts that Stephenson's testimony had no tendency to make more or less probable a fact of consequence in determining Appellant's guilt. See TEX. R. EVID. 401, 402 ; cf. Miller-El v. State , 782 S.W.2d 892, 895 (Tex. Crim. App. 1990) (holding that the victim-impact evidence at issue was inadmissible because it did not have a tendency to make more or less probable the existence of any fact of consequence at the guilt stage of trial). Appellant therefore argues that trial counsel had a duty to object to Stephenson's testimony as irrelevant victim-impact evidence.
To establish ineffective assistance, an appellant must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We have held that " ‘[d]irect appeal is usually an inadequate vehicle for raising such a claim ....’ " and that the claim must be " ‘firmly founded in the record’ and ‘the record ... affirmatively demonstrate[s] the meritorious nature of the claim.’ " Menefield v. State , 363 S.W.3d 591, 592 (Tex. Crim. App. 2012) (quoting Goodspeed v. State , 187 S.W.3d 390 (Tex. Crim. App. 2005) ).
Assuming without deciding that trial counsel's failure to object constituted deficient performance, Appellant has not established prejudice. Appellant contends that the admission of Stephenson's victim-impact testimony was prejudicial because there is a reasonable probability that the testimony pushed the jury toward a finding of guilt on the more serious offense. He claims that, but for the admission of victim-impact evidence, the jury would have convicted him of felony murder instead of capital murder.
There was an exchange between trial counsel and the court outside the jury's presence following Stephenson's testimony in which counsel described her failure to object as "my bad" and indicated that she intended to object to similar testimony in future exchanges. These circumstances suggest that counsel had no strategic basis for failing to object.
The record does not support Appellant's argument. For the jury to find Appellant guilty of only felony murder, the jury would need to find that Appellant had no intent to kill, but the challenged testimony had no bearing on whether Appellant had the intent to kill, so its probative value is weak. We conclude Appellant was not prejudiced because there is no reasonable probability that the outcome of the trial would have been different but for the admission of Stephenson's testimony. Because Appellant has not shown prejudice, we overrule Appellant's eighth point of error.
III. IMPROPER JURY ARGUMENT
In his ninth point of error, Appellant claims that the prosecutor engaged in improper jury argument when he injected his personal opinion of a witness's credibility. In Appellant's case in chief, Dr. Christi Compton opined that Appellant met the criteria for mild intellectual disability. The State's expert, Dr. Timothy Proctor, concluded that Appellant did not meet the definition of intellectual disability. During closing argument at the punishment phase, the prosecutor repeated Proctor's conclusion and told the jury:
The reason we love Dr. Proctor, the reason we called him, and the reason you can trust what he tells you is, look, if he's trying to bend the answers for me and trying to help me as much as possible, then he's going to come in here and try to work some number magic like Dr. Compton did .... Dr. Proctor doesn't do that. He comes in and tells it like it is, whether it's good for me or bad for me.
In his later argument, the prosecutor repeated that Dr. Proctor would "tell it like it is." Trial counsel did not object to either instance.
Appellant asserts that, by claiming to "love" the witness, saying that the witness "tells it like it is," and arguing that the jury could "trust him," the prosecutor injected his personal opinion of the witness's credibility. Appellant argues that this undermined the jury's role as the sole arbiter of credibility. Moreover, he complains that this was improper jury argument since the statements implied to the jury that there must be something outside the evidence presented that made Proctor's testimony more credible than Compton's. See United States v. Young , 470 U.S. 1, 18, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985).
A prosecutor may not inject his personal opinion of a witness's credibility during closing argument. Menefee v. State , 614 S.W.2d 167, 168 (Tex. Crim. App. 1981) (op. on 2d reh'g). However, this Court has previously held, and recently reaffirmed, that the right not to be subjected to improper jury argument is forfeitable by inaction. See Cockrell v. State , 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) ; see also Hernandez v. State , 538 S.W.3d 619, 622 (Tex. Crim. App. 2018). Appellant acknowledges that his trial counsel did not object to the statements, but he argues that this Court should adopt the federal plain-error standard for this type of error, and reverse even absent an objection, because of the weight given to a prosecutor's statements. See United States v. Gracia , 522 F.3d 597, 600 (5th Cir. 2008). Appellant's arguments do not persuade us to revisit Cockrell . Because Appellant did not object to this argument at trial, he forfeited the ability to complain about it on appeal. We overrule Appellant's ninth point of error.
IV. LAY OPINION TESTIMONY
In his tenth point of error, Appellant claims that the trial court erred in overruling his objection to lay witness opinion testimony. See TEX. R. EVID. 701. He alleges that the State elicited improper lay witness testimony from Detective Ron Rathbun, the lead investigator on the case, in the following colloquy:
Unless otherwise indicated, all subsequent citations in this section to "Rules" refer to the Texas Rules of Evidence.
Q. Detective Rathbun, in your investigation, did you find any evidence in your opinion of the intent to kill; that [Appellant], at the time he pulled the trigger, had the intent to kill Billy Stacks?
[DEFENSE COUNSEL]: Objection, Your Honor. Calls for an opinion -- or calls for him to be an expert.
THE COURT: Overruled as to this question.
Q. (By [the State]) What evidence did you find of an intent to -- to kill Mr. Stacks?
A. He -- he went in the store, the Conoco. He -- he -- he dressed in a way that he hid himself over to -- to hide his identity. He had a loaded gun. The video shows that he had his finger on that gun. And he approached Mr. Stacks by jumping over the counter and -- and coming up on Mr. Stacks. I just -- I guess what I'm saying is, it doesn't surprise me that -- that he killed him because of what he did that night when he walked through that door -- or ran through that door and did what he did.
Q. He went in with a loaded gun. That's the first thing.
A. Yes, sir.
Q. You said -- didn't stay on the customer side of the counter and ask for the money, right? He jumped it.
A. Yes.
Q. Mr. Stacks, I guess he's back in the counter when the video starts. If I understand you right, [Appellant] is the one who approaches Mr. Stacks. He comes after him, correct?
A. Correct.
Rule 701 states, "If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness's perception; and (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue." Id. Appellant contends that, because Rathbun's opinion was based entirely upon his viewing of surveillance footage, it was not "based on the witness's perception" of the events in question. Therefore, Appellant argues that Rathbun's testimony was inadmissible under Rule 701(a). Appellant also complains that the second requirement for lay witness opinion under Rule 701(b) was not met because the jury viewed the same surveillance video and was in the same position as Rathbun to draw its own conclusions about Appellant's intent. The State counters that Appellant's objection at trial did not preserve a complaint as to Rule 701(a) or (b) for appellate review. We agree that Appellant did not adequately preserve either complaint.
Preservation of error is governed by Rule 33.1 of the Texas Rules of Appellate Procedure. See Pena v. State , 285 S.W.3d 459, 463 (Tex. Crim. App. 2009). To preserve a complaint for appellate review, an objection must state the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint. TEX. R. APP. P. 33.1(a). The complaining party bears the responsibility of clearly conveying his particular complaint to the trial judge. See Pena , 285 S.W.3d at 464. To avoid forfeiting a complaint on appeal, the party must "let the trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the judge to understand him at a time when the judge is in the proper position to do something about it." Id. (quoting Lankston v. State , 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) ). This gives the trial judge and the opposing party an opportunity to correct the error. Id.
Appellant's objection that the prosecutor's question "call[ed] for an opinion -- or call[ed] for [Rathbun] to be an expert" was ambiguous. Even in context, the objection failed to inform the trial court that Appellant was complaining that neither component for lay opinion testimony had been met. Appellant's lack of clarification prevented the trial court from addressing the merits of a Rule 701 objection at trial. Therefore, he did not preserve Rule 701 complaints for appellate review. We overrule Appellant's tenth point of error.
V. INTELLECTUAL DISABILITY DETERMINATION
The defense filed a pretrial motion asking for a separate trial to determine whether Appellant had an intellectual disability that would render him ineligible for the death penalty. See Atkins v. Virginia , 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) ; see also Moore v. Texas , 581 U.S. 1, 12, 137 S.Ct. 1039, 197 L.Ed.2d 416 (2017). In his eleventh point of error, Appellant complains that the trial court erroneously denied this motion.
In its ruling, the trial court cited Petetan v. State , 622 S.W.3d 321 (Tex. Crim. App. 2021). There, this Court held that the issue of intellectual disability could not be litigated pretrial because it is a sentencing issue and "sentencing issues are generally not ripe for review before a finding of guilt." Id. at 334. Appellant now argues that Petetan was wrongly decided because the continued lack of statutory guidance for intellectual disability determinations creates an unconstitutional risk that someone with an intellectual disability will be executed. See Atkins , 536 U.S. at 321, 122 S.Ct. 2242 ; see also Moore , 581 U.S. at 6, 137 S.Ct. 1039. Appellant asks us to overturn Petetan and hold that the Eighth Amendment requires a separate jury to determine intellectual disability independent of guilt.
We are not persuaded to revisit Petetan . Because there is no requirement in Texas law that the intellectual disability issue be resolved pretrial, the trial court did not abuse its discretion in denying Appellant's motion. We overrule Appellant's eleventh point of error.
VI. JURY CHARGE ERROR
In points of error twelve and thirteen, Appellant asserts that he was harmed by errors in the court's punishment charge. A claim of jury charge error is reviewed using the standard set out in Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). See Barrios v. State , 283 S.W.3d 348, 350 (Tex. Crim. App. 2009).
A. Order of Special Issues
The jury charge submitted the special issues in the following order: (1) the future-dangerousness instruction; (2) the mitigation instruction; and (3) the intellectual disability instruction. At the charge conference, Appellant objected to the order of the special issues and argued that the intellectual disability issue should be submitted in the charge first. The trial court overruled the objection.
In his twelfth point of error, Appellant complains that the trial court erred in denying his re-ordering request. He argues that the intellectual disability issue should come first because a finding of intellectual disability would preclude the imposition of the death penalty and moot out the two remaining special issues. Additionally, he asserts that submitting the intellectual disability issue after the mitigation issue might encourage the jury to disregard the mitigating effect of his intellectual disability evidence and could suggest that it did not have great mitigation value in the first place.
Appellant directs our attention to two trial proceedings where the trial courts submitted the intellectual disability issue first. See Brownlow v. State , No. AP-77,068, 2020 WL 718026 (Tex. Crim. App. Feb. 12, 2020) (not designated for publication); Thomas v. State , No. AP-77,047, 2018 WL 6332526 (Tex. Crim. App. Dec. 5, 2018) (not designated for publication). However, these cases are distinguishable because the trial courts submitted the intellectual disability issue first at their own discretion. No authority required them to do so. Accordingly, the trial court in this case did not err in submitting the intellectual disability issue third. We overrule Appellant's twelfth point of error.
B. Instruction on Evidence to be Considered
Appellant's thirteenth point of error argues that two charge errors regarding the intellectual disability special issue resulted in a capricious and arbitrary imposition of the death penalty in violation of the Eighth Amendment. See Atkins , 536 U.S. at 321, 122 S.Ct. 2242 (noting that the Eighth Amendment bars the execution of intellectually disabled offenders).
Appellant first argues that the trial court erred by refusing to instruct the jury to consider only "that evidence presented to the jury by the experts" when considering the intellectual disability special issue. Appellant contended at trial that the facts of the case were irrelevant to the intellectual disability issue and that, if the jurors were permitted to consider the evidence from both phases of trial, they would take unconstitutional factors into consideration. See Moore , 581 U.S. at 6, 137 S.Ct. 1039 (noting that the adaptive functionality factors identified in Ex parte Briseno , 135 S.W.3d 1 (Tex. Crim. App. 2004), created an unacceptable risk that a person with an intellectual disability would be executed in violation of the Eighth Amendment). Appellant now asserts that a jury restricted to considering only evidence presented by experts would result in an intellectual disability determination free from constitutional defect because experts would not rely on disavowed factors in determining intellectual ability. "The legal determination of intellectual disability is distinct from a medical diagnosis, but it is informed by the medical community's diagnostic framework." Hall v. Florida , 572 U.S. 701, 721, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014) ; see also Kansas v. Crane , 534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002) (noting that the science of psychiatry informs but does not control ultimate legal determinations). Therefore, expert input is not the only factor that can be considered. The jury may also consider guilt and punishment evidence in reaching an intellectual disability determination. See Petetan , 622 S.W.3d at 333-34. Indeed, examining the details of the offense may be necessary when evaluating the strength and reliability of the evidence presented by the experts regarding intellectual disability. Id. at 334. Because the jury is not required to limit its intellectual disability determination to a review of only the evidence presented by the experts, the trial court did not violate the Eighth Amendment when it denied the request, and the jury charge was not erroneous on that basis.
In multiple parts of his brief, Appellant refers to the "evidence presented by the experts," but on the last page of his brief, he refers to the failure to limit the evidence the jury could consider to "psychological testing." We understand Appellant to use the terms synonymously.
The State points out that the experts at punishment relied on lay information in forming their opinions, such as information gathered from family members, and it argues that an instruction limiting the jury's consideration to only evidence presented by the experts would have been an improper comment on the weight of the evidence. We need not resolve that argument, however, given that we conclude the trial court did not violate the Eighth Amendment when it refused to give the instruction.
Appellant next argues that the instructions in the jury charge were inconsistent. At the charge conference, Appellant objected to a portion of the intellectual disability instruction. It stated: "[W]hen deliberating on Special Issue No. 3, submitted in this Charge, the jury shall consider all the evidence admitted in the guilt or innocence stage or the punishment stage of this trial." Appellant argued that this language should be removed and replaced with an instruction to consider only evidence presented by the experts in making an intellectual disability determination. The State responded that, even if Appellant's proposed changes were made, the general instructions for the special issues would still instruct the jury to consider evidence from both the guilt and punishment phases of trial. The general instructions read as follows:
In determining your answers to the questions, or "Special Issues," submitted to you, you shall consider all the evidence submitted to you in this whole trial. This includes the evidence admitted during the first stage of the trial concerning the defendant's guilt as well as any evidence admitted during this punishment stage in which you are now called upon to determine the answers to Special Issues submitted to you by the Court.
Following this exchange, Appellant maintained his objection regarding the wording of special issue number three and did not seek changes to any portion of the general instruction. The trial court sustained the first part of Appellant's objection and removed the language directing the jury to "consider all the evidence admitted in the guilt or innocence stage or the punishment stage of this trial" from the third special issue. However, the court again denied the request for an instruction that specifically directed the jury to consider only evidence presented by the experts. Appellant argues that the resulting charge was erroneous because it was unclear as to whether the jury should consider evidence from the guilt phase of trial when answering the intellectual disability special issue. He contends that the fact that the general instruction was left in the jury charge does not matter because special issue number three did not instruct the jury about what evidence to consider in resolving that issue. Appellant concludes that, "[h]ypothetically, this places the jury in an awkward if not, inconsistent position." We disagree and conclude that there was no error because the jury charge was clear.
Even if we concluded that the jury charge was erroneous, a defendant is not harmed under Almanza if the alleged harm is only hypothetical or theoretical. Arline v. State , 721 S.W.2d 348, 351 (Tex. Crim. App. 1986).
In the final version of the jury charge, special issue number three was silent about what evidence the jury should consider. In the absence of a specific instruction, the jury was guided by the general instruction, which ordered the jury to "consider all the evidence submitted to you in this whole trial ... [including] the evidence admitted during the first stage of the trial concerning the defendant's guilt as well as any evidence admitted during this punishment stage." The general instruction was clear, Appellant does not complain that the general instruction was incorrect or that it should have been removed, and Appellant directs us to no authority that requires an instruction informing the jury what evidence it can consider when deciding the intellectual disability special issue. Further, as discussed above, the jury was not required to limit its consideration of the intellectual disability issue to only evidence presented by the experts. See Petetan , 622 S.W.3d at 333-34. Rather, the jury could look to evidence introduced at the guilt and punishment phases of trial. Id. Therefore, the jury charge was not erroneous, and we overrule Appellant's thirteenth point of error.
Had there been no general instruction in the final charge, Appellant's claim might have been stronger.
VII. CHALLENGES TO THE DEATH PENALTY SCHEME
In points of error one through seven, Appellant raises a variety of challenges to Texas's statutory death penalty scheme. He complains that the trial court erred by overruling motions to: (1) declare Art. 37.071 unconstitutional; (2) declare Texas's statutory capital sentencing statute unconstitutional because it allows juries to decide future dangerousness based solely on the factors of the case; (3) declare the "10-12 Rule" unconstitutional; (4) hold unconstitutional Art. 37.071 § 2(e) and (f) for failing to require that mitigation be considered; (5) preclude the death penalty as a sentencing option and declare Art. 37.071 unconstitutional in light of Ring v. Arizona ; (6) declare Texas's statutory capital sentencing scheme unconstitutional and preclude imposition of the death penalty; and (7) declare Texas's statutory death penalty scheme unconstitutional.
With regard to each claim, Appellant recognizes that his arguments in these points of error have been routinely denied by this Court, but he asserts that he must make them to exhaust his state claims so that he can pursue federal relief. Because Appellant provides only conclusory arguments in support of these claims, they are inadequately briefed and we need not address them. See TEX. R. APP. P. 38.1(i). We also note, as Appellant states, that we have rejected these claims in previous cases, and we decline to revisit them now. Appellant's points of error one through seven are overruled.
See Jenkins v. State , 493 S.W.3d 583, 613-18 (Tex. Crim. App. 2016) (affirming the constitutionality of the 10-12 rule; rejecting the need to define "probability," "criminal acts of violence," "militates," and "continuing threat to society"); Davis v. State , 313 S.W.3d 317, 354-55 (Tex. Crim. App. 2010) (rejecting the need to define "personal moral culpability," "moral blameworthiness," and other terms; rejecting the contention that the mitigation special issue is unconstitutional by failing to assign a burden of proof); Williams v. State , 301 S.W.3d 675, 694 (Tex. Crim. App. 2009) (rejecting the contention that the death penalty, as presently administered in Texas, amounts to cruel and unusual punishment); Russeau v. State , 291 S.W.3d 426, 437 (Tex. Crim. App. 2009) (rejecting the contention that the death penalty scheme is unconstitutional for failing to provide a meaningful sufficiency review of the mitigation issue); Saldano v. State , 232 S.W.3d 77, 105 (Tex. Crim. App. 2007) (rejecting the contention that the statutory punishment instructions fail "to provide a rational basis to permit a discretionary grant of mercy based on mitigating circumstances"); Roberts v. State , 220 S.W.3d 521, 534 (Tex. Crim. App. 2007) (rejecting the contention that the mitigation special issue unconstitutionally narrowed mitigating evidence to that which reduces moral blameworthiness).
VIII. CONCLUSION
Finding no reversible error, we affirm the trial court's judgment of conviction and sentence of death.
Walker, J., filed a concurring opinion in which Richardson, J., joined.
Keel, J., concurred.
CONCURRING OPINION
Walker, J., filed a concurring opinion, in which Richardson, J., joined.
I join the Court's opinion and judgment upholding Appellant Dameon Jamarc Mosley's conviction and sentence. I wish to address Appellant's argument at trial that, although he fully intended to commit a robbery of the Conoco, he did not intend to kill the attendant and that his gun accidentally went off during the brief struggle. The evidence showed that Appellant used a revolver. As the prosecutor recognized yet defense counsel failed to appreciate, the use of a revolver is an important fact that is enough to shut down almost any accident defense.
As I have previously emphasized: "it is almost impossible to accidentally or involuntarily fire a fully-functioning double-action revolver unless the hammer is in the cocked position. " Piper v. State , No. PD-0712-18, 2019 WL 4315756, at *7 (Tex. Crim. App. Sept. 11, 2019) (Walker, J., concurring) (not designated for publication). Instead, "the physical reality of the gun itself strongly militates against any claim that it was accidentally or involuntarily fired." Id. Attorneys on both sides of the aisle—prosecutors and defense counsel—must be aware that accident claims are incredibly weak where a revolver is involved.
In Appellant's case, the evidence showed that Appellant entered the Conoco station armed with a revolver, jumped over the counter, physically confronted the attendant, and then shot the attendant twice after the attendant kicked at Appellant and they struggled. His defensive strategy at trial was to seek a conviction for the lesser included offense of felony murder, based on the theory that, although he fully intended to commit a robbery of the Conoco, he did not intend to kill the attendant and the gun just went off during the struggle. The prosecution's handling of Appellant's "gun just went off" theory presents a case study of how to address that argument.
Defense counsel's opening statement laid it out:
On January 28th, 2017, Dameon Mosley, along with the assistance of Kedarius Oliver and LaMarcus Hannah, went into the Conoco station to rob the station. Do I need to repeat it? He went in there with the intent to rob.
But, ladies and gentlemen, he did not have the intent to kill Mr. Stacks. In that struggle, that gun goes off. And when you commit a felony in the State of Texas and in the course of committing that felony, you do an act clearly dangerous to human life, you are guilty of felony murder, not capital murder.
The State presented evidence showing not only that the murder weapon was a revolver, but also explaining how revolvers work. Firearm and tool mark examiner Stacey Phetteplace examined the bullets recovered during the autopsy and determined that both were fired from the same firearm. Additionally, Phetteplace testified:
Q. ... Did you have any other opinions about what type of firearm that these bullets were fired from?
A. I —
Q. Not brand, but —
A. Type of firearm. They were fired from a revolver.
Q. And how do you know that?
A. The — as I described earlier, with a revolver, there's a gap between the cylinder and the bore, and there's a forcing cone that forces that bullet into the bore. The — both the bullets had forcing cone marks that were in front of the rifling marks.
Typically, we'll see that on — the curvature of the bullet will be curved, as you can see in this picture, towards the nose. It curves towards the center. The forcing cone marks were up on that curve of the bullet, and they were found on both of the bullets, which is an indication that it was fired from a revolver.
In addition, most .38-caliber bullets that — that have this type of shape are commonly loaded into .38 Special cartridges, which is commonly used in revolvers, although — Smith & Wesson does make a pistol that also shoots a .38 Special cartridge. But most of the guns are on the list are listed as revolvers.
Phetteplace later confirmed that it was unknown whether the gun was a single-action or a double-action revolver, but explained how both types worked to the jury:
A. With a single-action revolver, the — the hammer has to be manually pulled back and then the trigger pulled in order to fire the revolver.
The trigger only has one function, and that is to cause the firearm — cause the hammer to fall.
In a double-action firearm, the trigger can pull the hammer back and release it. So it does two steps so it's called a double-action.
Q. So a single-action is kind of like what you see — it may not look the same, but kind of like what you see in westerns. You know, the cowboy pulls it out — pulls the hammer back and —
A. Yes, that's correct.
Q. And then a double-action, you pull the trigger, and the hammer goes back and falls?
A. Yes.
...
Q. Okay. Now, we talked about single-action versus double-action revolver.
A. Yes.
Q. Okay. So if I had a single-action — I want to be clear about this. If I have a single-action revolver, how do I go about firing that revolver?
A. In a single-action revolver, the first step after loading the chamber would be to pull the hammer back. When the hammer is pulled back, the cylinder will rotate to align the cartridge with the — with the barrel or the bore.
And then when you are ready to shoot the revolver, you pull the trigger, the hammer falls, it causes the firearm — depending on the firearm, it either has a firing pin in the hammer, or it hits a firing pin, and it causes the firing pin to hit the primer which causes the discharge.
Q. So in order to fire it, to be clear, I have to have pulled the trigger back manually with my thumb or hand or something —
A. The hammer, not the trigger.
Q. Yeah. Sorry. You have to pull the hammer back, and at that point, you have to pull the trigger?
A. Yes.
Q. Okay. Now, a double-action, how do you fire that again?
A. In a double-action, the hammer could be set in the position that you see on the screen. You pull the trigger, the hammer will cock. And as the hammer is being cocked, the cylinder will rotate to align the next chamber with the bore. And in the same motion, the — when the trigger reaches the rear of the trigger guard, the hammer will fall and cause a discharge.
A. Okay. You actually have to pull the trigger with a double-action, which causes the hammer to go back, and then it eventually falls forward and —
A. Yes.
Q. — which causes the bullet to shoot?
A. Yes.
The prosecutor then asked Phetteplace about shooting twice:
Q. ... How would you shoot a single-action revolver twice?
A. For every time you — on a single-action revolver, every time you shoot it, you have to pull the hammer back and pull the trigger, pull the hammer back and pull the trigger.
Q. And how about a double-action?
A. The double-action, you just keep pulling the trigger.
Q. Okay. So if I have a single-action, you said I have to pull the hammer back, pull the trigger, pull the hammer back, pull the trigger?
A. Yes.
Q. And double-action, every time you pull the trigger, the cylinder rotates —
A. Yes.
Q. — and it will fire?
The State then had Phetteplace view the surveillance footage of the robbery. Phetteplace again opined, this time based on the footage, that the weapon was a revolver. Because the actual weapon was never recovered, Phetteplace could only give general testimony about revolvers, which the State was sure to reemphasize:
Q. And so without having analyzed this revolver, you can't really give us very many characteristics about it, right?
A. That's right.
Q. But, in general, a single-action revolver, to be clear, if you're going to shoot it twice, you have to pull the hammer back and pull the trigger, pull the hammer back and pull the trigger.
A. That's correct.
Q. And for a double-action, you have to pull the trigger twice?
A. Yes.
Q. In general — well, I guess you have analyzed quite a few firearms over the course of your career, haven't you?
A. Yes, I have.
Q. In particular, you've analyzed several — I mean, quite a few revolvers; is that right?
A. Yes.
Q. I guess, generally speaking, what type of resistance or pounds of pressure do you usually see on a double-action revolver on the trigger?
A. On a double-action, I've seen them as low as 8 pounds. I've seen them as high as 15 pounds.
Q. What does that mean?
A. Pounds of force. This is different than pounds of weight. Like a gallon of milk weighs 10 pounds, we're not talking about weight. We're talking about force.
So to open, like, a soda can, the pull tab on a soda can takes about 8 pounds of force. So that's a relative term. Some are lighter; some are heavier, take more force or less force.
Q. So you said you've seen as low as 8 and as high as how much?
A. 15.
Q. 15?
A. For a double-action.
Q. So in order to pull a trigger on a double-action, you have to have anywhere between 8 to 15 pounds of force pulling that back?
A. In general, yes.
Q. In general.
A. Yes.
On cross-examination, defense counsel asked Phetteplace about the possibility that a gun could just go off:
Q. You always have to pull a trigger to fire a gun, right?
A. Yes, sir.
Q. All right. I mean, it doesn't just explode.
...
Q. It doesn't just fire by itself, does it?
A. Not unless there's something wrong with it.
In closing arguments, the prosecutor reminded the jury of Phetteplace's testimony:
Additionally, there were two shots. And this is huge. Okay? The Defense said in their opening statements that the gun went off. We heard from Stacey Phetteplace about how revolvers work, about you have a single-action revolver and a double-action revolver.
... Stacey Phetteplace said in order to shoot a single-action revolver, you would take the gun, pull the hammer back, and then pull the trigger. So if Dameon Mosley's gun was a single-action firearm, during the altercation, he would have had to have pulled the hammer back, either with his thumb or his other hand, and pull the trigger for that gun to go off.
And then to do the second shot, he would have had to have pulled the hammer back and pulled the trigger for the second shot. That's intent. To pull the hammer back and then pull the trigger, that shows you that Dameon Mosley intended to kill Billy Stacks.
But we don't know if it was a single or double-action revolver. Okay? If it was a double-action revolver, he has to pull the trigger each time the gun fires. And each time he pulls the trigger, that's intent to kill, every single time every day.
In rebuttal argument, the State again focused on the nature of revolvers:
Two shots, two pulls of the trigger.
Now, certainly, if it was a single-action revolver that Mr. Mosley is having to pull the trigger or pull the hammer back and then pull the trigger twice, that would be better for the State. It
takes a lot more effort to do that. We've all seen the Old West movies. It doesn't appear from the video that's what this is.
This is a double-action revolver. But that means you heard from Stacey Phetteplace, you're going to need at least 8 pounds — somewhere from 8 and 15 pounds is standard for double-action revolvers, to pull that trigger back and have it fire.
Defense counsel failed to appreciate the significance of the revolver. Instead, during closing argument counsel sidestepped the issue:
Single-action, double-action revolver, we don't have the gun. We don't know what the capabilities of the gun were. We don't know what the firing pattern had to be. We don't know whether it had to be cocked or not cocked. We don't know any of that information.
So you can't make assumptions on evidence you don't have, but you can use your common sense about what happens when there is a struggle and a gun is in the middle of that struggle.
Defense counsel was correct that they did not have the actual gun, and the specific characteristics of the actual gun were unknown. But the evidence the jury did have showed that the gun was a revolver, and the jury's common sense must be informed by that fact.
Of course, the best approach would be to have the gun itself examined and tested to determine whether the gun is defective. If not, the gun should be examined to determine the pull weight of the trigger, especially if it is a double-action revolver. But in cases such as Appellant's where the gun is never recovered yet it is at least clear that the weapon was a revolver, attorneys on both sides of the aisle must be aware that this is a significant factor in the case. Even without the actual revolver, being cognizant of the mechanics of how revolvers work in general will allow prosecutors and defense counsel to not only know how to rebut a "gun just went off" argument, but to assess whether such an argument is even viable. While attorneys could make that assessment through their own judgment if they are familiar with revolvers, they would all be well-served by consulting with an expert who could, like Phetteplace in the case before us, present important testimony at trial.
When a revolver is involved, how those particular firearms work goes to the very heart of intent. Single-action revolvers require the very deliberate action of cocking the hammer. Double-action revolvers, although not requiring the hammer to be manually cocked, require forceful trigger pulls. In my view, the prosecutor correctly handled the fact that Appellant used a revolver.
There are, of course, exceptions to the general rule, and revolvers exist outside of the single-action and double-action, such as the Webley-Fosbery Automatic Revolver or the Mateba Model 6 Unica. If the evidence shows the gun is, in fact, an automatic revolver, counsel on both sides again must be aware how this could change their trial strategies.
We need to put an end to meritless "the gun just went off" arguments. Almost all revolvers do not accidentally "just go off." As I said before, it is virtually impossible for a revolver to go off without deliberate action. See Piper , 2019 WL 4315756, at *7. Not only do revolvers require an intentional pull of the trigger, single-action revolvers require the hammer to be manually cocked, and double-action revolvers require much more force to pull the trigger when the hammer is not already cocked. If a double-action revolver's hammer is cocked, then the same deliberateness is present as it would be with a single-action. When a revolver is fired, it is almost never an accident. That Appellant fired it twice seals the deal.