Opinion
NO. 01-17-00437-CR
08-14-2018
WARREN JORDAN MURRAY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 412th Judicial District Court Brazoria County, Texas
Trial Court Case No. 79474-CR
MEMORANDUM OPINION
Early one morning, Warren Murray was sitting on the tailgate of his truck at a gas station in Manvel when he flagged down a uniformed, off-duty police officer and, as the officer approached, tossed a spent pistol casing at the officer and told him that he shot a woman in nearby Alvin. The off-duty officer contacted local law enforcement. Brazoria County Sheriff's Office investigators arrived and interviewed Murray. Meanwhile, police in Alvin were investigating the scene where Lindsey Canada had just been found lying on the edge of the road with gunshot wounds. Canada died days later, and Murray was charged with and later convicted of murder.
See TEX. PENAL CODE § 19.02.
Murray concedes that his statement to the off-duty officer that he had shot a woman was admissible. On appeal, he challenges the trial court's denial of his motion to suppress subsequent statements he made to two on-duty investigating officers. He also contends there was insufficient evidence to support his conviction and the trial court erred by denying his jury-charge request.
We affirm.
Background
Because Murray challenges the trial court's ruling to deny his motion to suppress, we will divide the background section into what is known apart from Murray's challenged statements to the police and what was revealed only through those challenged statements.
Evidence exclusive of Murray's challenged statements to police
Canada had three young children. In the past, she and her children lived with Murray and his mother. More recently, they lived in an efficiency apartment with her mother. According to Canada's mother, Canada left the apartment with a backpack and her bicycle sometime between 10:30 p.m. and 4:00 a.m. on July 20, 2016.
Surveillance video obtained by police from the apartment complex shows a red truck pull into the parking lot at 2:23 a.m. and Canada place a bag into the cab of the truck, load a bicycle into the bed of the truck, and get into the passenger's seat. The truck leaves the apartment parking lot at 2:25 a.m. Murray drives a matching red Dodge truck.
Alvin Police Department received a phone call at 5:03 a.m. reporting that a man had discharged a weapon at Murphy's gas station and driven away with a woman in the vehicle. The police obtained surveillance video from Murphy's gas station. It shows Murray's red Dodge truck arriving at 4:54 a.m. with Canada's bicycle in the bed of the truck. Canada is with him. Murray has described what happens next in the video as a "fight" with Canada. Murray, who is wearing a grey shirt and shorts, gets out to pump gas, then leans into the truck's cab, looks around, walks to the passenger side of his truck, and continues looking around. Canada begins to do the same. It appears they are searching for something. Murray then stands at the driver's side door, holds up a gun, and fires the gun in the direction of the front, passenger-side tire. Based on this video and the condition of the truck later that morning, a law enforcement officer testified that it appears the bullet pierced his windshield.
There was evidence that Murray is a convicted felon and could not legally possess a firearm. See TEX. PENAL CODE § 46.04.
Immediately after shooting the gun, Murray walks to the other side of the truck and pulls Canada from her seat. Murray then enters the truck through the passenger side door, closes the door behind him, and slides over to the driver's side. Meanwhile, Canada quickly climbs into the bed of the truck next to her bicycle. The truck begins to move right after Canada gets in the bed of the truck. The truck leaves the gas station at 4:59 a.m.
K. Anderson, who lives close to County Road 155 in Alvin, testified that she was leaving for work around 5:00 a.m. when she heard two nearby "pop" sounds—which sounded similar to fireworks exploding—followed by a scream and garbled words from a female's voice she described as "intense," followed by a third "pop" sound. There were no more screams after the third "pop."
Minutes later, at 5:09 a.m., the Brazoria County Sheriff's Office received an emergency call to report a woman's body on the side of the road on County Road 155 in Alvin. The location is approximately two miles from the Murphy's gas station where Murray and Canada were seen just ten minutes earlier.
Emergency medical personnel records indicate that the ambulance arrived within fifteen minutes, noted that Canada had a head wound and leg wound, and took her to the hospital. She died nine days later from a gunshot wound to her head.
When the police investigated the scene, they found several pieces of evidence a little farther down the road from where Canada was lying, including her bicycle, her purse (which later tested positive for having her blood on it), an owner's manual for a Dodge truck, and other personal items. They also recovered 9-millimeter Luger cartridge casings at the scene.
Around 7:00 a.m., M. McClanahan, who lives near County Road 1128 in nearby Manvel, saw a red truck in his driveway. The driver, Murray, asked to buy gasoline from him. McClanahan testified that the interaction was "bizarre." McClanahan repeatedly refused to sell Murray gas and, instead, gave him directions to a local gas station. Murray left.
Around 7:20 a.m., Lieutenant F. Hart with the Deer Park Police Department was driving through Manvel on his way to work. He was in his police uniform and driving a police-issued vehicle. Although his vehicle did not have any writing or symbols on the outside to indicate that it was a police vehicle, Hart testified that the vehicle had many of the same characteristics as a marked police car, including an attached spotlight and "push bumper" in the front. As Hart drove through Manvel, he was off-duty and outside of his jurisdiction.
While at a stop light at the intersection of County Road 1128 and County Road 101 in Manvel, Hart saw Murray, who was sitting on the tailgate of a red truck in a gas station parking lot and motioning toward him in a way that indicated he needed Hart's assistance. Hart drove into the John's Countryette parking lot to offer assistance.
Hart asked Murray what he needed. Murray immediately tossed "a spent pistol casing toward" Hart and told him that he "just shot a woman in Alvin." Concerned that Murray might have a weapon behind him, Hart asked Murray to stand up, turn around, kneel, lie on the ground, and prepare to be handcuffed. Murray complied. Hart called his police department and asked that they contact Pearland police. As they waited for local law enforcement, Murray continued talking without prompting. Murray said that he shot a woman who was trying to rob him. Hart described Murray as having "erratic" speech and repeating himself often. Hart read Murray the Article 38.22 statutory warnings as they waited for local law enforcement.See TEX. CODE CRIM. PROC. art. 38.22 § 2(a).
Neither Murray nor the State discuss in their briefs the legal effect of this off-duty officer providing statutory warnings to Murray before any on-duty officers question him. Likewise, the trial court's findings of fact and conclusions of law issued in connection with the denial of Murray's motion to suppress do not address the warnings provided by Hart.
Officers from the Pearland Police Department and the Brazoria County Sheriff's Office arrived at John's Countryette. They took Hart's statement, and Hart left to continue his drive to work. Investigator J. Mink with the Brazoria County Sheriff's Office questioned Murray and later took him to the Sheriff's Office for additional questioning.
While at John's Countryette, officers recovered a 9-millimeter Luger cartridge casing lying on the ground near Murray's truck. Another casing was observed in the crease of the driver's seat of his truck. And Murray's grey t-shirt was recovered from inside the toolbox in the bed of his truck.
John's Countryette surveillance video was admitted into evidence. It shows Murray at the gas station before and after Hart arrived. Murray is wearing different clothes than in the earlier Murphy's video. At first, Murray pumps gas, wipes his hands with a towel, and places the towel across his windshield, covering the bullet hole. He then sits on the tailgate of his red truck, looking toward traffic. Murray makes a circular, "come here" motion with his hands as he looks toward traffic, and Hart's white police vehicle pulls into the parking lot near him. Hart and Murray speak briefly, then Murray is seen complying with Hart's order to lie on the ground to be handcuffed.
Murray does not challenge the admissibility of any of the evidence already discussed, including his statement to Hart that he "just shot a woman in Alvin" and the casings in and near his truck where he was arrested and near where Canada was found. His challenge is to later statements he made to Brazoria County Investigators J. Mink and J. Waldrop, which will be discussed next.
Evidence of Murray's challenged statements to police
Mink was the first of the two investigators to arrive at John's Countryette. Before approaching Murray, Mink talked to Hart and other officers at the scene. He then approached Murray, who was sitting in the back of a patrol car, with handcuffs on his wrists and bags covering his hands so that they could be processed for residue that would indicate whether he had shot a firearm recently. Audio of the encounter was admitted into evidence.
Mink said, "Hey, how are you? I'm Investigator Mink with the Sheriff's office. How are you doing? You OK? What's your name?" Murray responded, "I ain't never killed nobody before."
Mink stated, "Well, I'm hard of hearing, so you gotta kinda speak up. I didn't catch your name." Murray then told Mink his name. Mink asked for additional identifying information, and Murray provided it.
About one minute into the interaction, Mink said, "So what happened tonight?" And Murray answered, "She stole some of my s—." Mink asked who, and Murray replied, "Lindsey Canada." Murray continued speaking:
I said get the f— out of my truck, you know, just f— get out, and she said you have all my s—, and you can have all your s—, and I stood up; just get the f— out of my truck. Go! So, I fired a shot up in the air with—she had dope on her—you know what I mean—[inaudible] God d— it, so I walked around to her side and pulled her out of there, I locked the door and I climbed in and I shut it behind me and I sped the f— off. She jumps in back and I kept telling her get the f— out of my truck, get the f— out of my truck and she climbed to the driver's side [inaudible] and pulls the steering wheel sideways and she finally says just stop the truck and I will get out. You know, she does but she clings to the side of the truck. When I stop she clings to the side of the truck. She opens the driver's side of the door [inaudible] she said you have all my stuff. I jumped in the back, and she won't get out of my truck, so I fired a couple more rounds, not at her, just to scare her, you know? I fired every round in my clip, not at her, she was clinging onto the side of my door, pulling my steering wheel to the side of the road, the second to the last shot hit her knee. I know the last shot her in the head.
During that description, Mink said "ok," "uh-huh," and "hit her where?" Murray was otherwise uninterrupted. At this point, they were three minutes into their discussion.
Next, Mink confirmed where Murray said the bullets struck Canada, and Murray continued as follows:
I didn't hit her until then. I fired every shot trying to get that b— off my truck. She tried to rob me with a knife [inaudible]. She started coming at me with a knife and I had a pistol in my hand, you know what I mean?
For the next three and one-half minutes, Murray told Mink that he and Canada had used drugs earlier that morning, described his fear that he had been followed by people "with Facebook" during the early morning, and asked what would happen to his truck. Mink interpreted Murray's behavior to indicate that Murray was "high on meth" and "paranoid." Then Mink told Murray, "Right now you aren't being charged with anything. I'm just trying to figure out what's going on, alright?" Mink read Murray the Article 38.22 statutory warnings. See id.
The two continued to talk for another eight minutes with Murray describing all the locations he and Canada had been since he picked her up, his paranoid belief that she had stolen his wallet (though it was recovered later in his truck console), and other matters. Murray is then taken to the Sheriff's Office.
There, Investigator J. Waldrop gave Murray the Article 38.22 warnings again and interviewed him. The interview was recorded, but Waldrop did not identify himself in the video. During their conversation, Murray told Waldrop that Canada stole his "dope" and wallet. Although Murray earlier said that Canada attacked him with a knife, Murray told Waldrop in this interview that she attacked him with a spoon, adding, first, "Honestly, bro, I never saw a knife," and second, "I killed the b—."
Murray described throwing Canada's things from his truck, including her purse, and then shooting Canada as she hung from the exterior of his driver's side door. Waldrop testified that Murray's description was inconsistent with the evidence found on County Road 155 because Canada's purse had her blood on it when it was found approximately 50 yards from her body.
Motion to suppress and trial
Before trial, the court held a hearing on Murray's motion to suppress various statements to Mink and Waldrop. Following that hearing, the trial court issued findings of fact and conclusions of law and denied the motion.
Murray was tried for murder. He presented a theory of self-defense. He requested that the jury be charged with manslaughter, as a lesser-included offense to murder. His request was denied. He was convicted of murder and appealed.
Sufficiency of Evidence
Murray first challenges the sufficiency of the evidence to support his conviction. Specifically, he contends that the State failed to disprove his self-defense theory that he shot Canada as she attacked him following a failed attempt to rob him. Murray points to only two pieces of evidence that support his self-defense theory. First, shortly after the shooting, Murray told the police that Canada had tried to rob him. Second, Canada's blood was found in his truck, which, according to Murray, indicates that she injured herself while attacking him as she tried to enter the cab of his moving truck.
A. Standard of review
We review sufficiency of the evidence using the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 318 (1979). See Brooks v. State, 323 S.W.3d 893, 898-912 (Tex. Crim. App. 2010). Under that standard, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319 (emphasis omitted); see Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). In making our determination, we consider all reasonable inferences that may be drawn from the evidence, including all direct and circumstantial evidence. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). All admitted evidence is considered, even evidence admitted improperly. See Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999); Morales v. State, 95 S.W.3d 561, 563 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd).
Evidence is insufficient in four circumstances: (1) no evidence exists that is probative of an element of the offense in the record, (2) only a "modicum" of evidence exists that is probative of an element of the offense, (3) the evidence conclusively establishes a reasonable doubt, and (4) the alleged acts do not establish the criminal offense charged. See Jackson, 443 U.S. at 314, 320; Laster, 275 S.W.3d at 518; Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
The jury has the exclusive role of evaluating the facts, the credibility of the witnesses, and the weight a witness's testimony should be given. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981); Jaggers v. State, 125 S.W.3d 661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd). The jury may choose to believe all, some, or none of a witness's testimony. See Davis v. State, 177 S.W.3d 355, 358 (Tex. App.—Houston [1st Dist.] 2005, no pet.). And the jury alone must reconcile any conflicts in the evidence. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000).
The burden of proof is on the State to prove the elements of the criminal offense beyond a reasonable doubt, and, if there is some evidence that a defendant's actions were justified under a theory of self-defense, the State also has the burden to disprove self-defense beyond a reasonable doubt. See Alanzo v. State, 353 S.W.3d 778, 781 (Tex. Crim. App. 2011). A jury's verdict of guilty is an implicit finding rejecting the defendant's self-defense theory. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).
B. Evidence was legally sufficient
There was extensive evidence that Murray shot Canada, including his incriminating statement to Hart. There also was video evidence of Murray with Canada minutes before she was shot. In that video, Murray fired a weapon with Canada sitting feet away inside his truck. Additionally, 9-millimeter Luger cartridge casings were found both at the scene next to Canada and at John's Countryette where Murray later flagged down Hart. Furthermore, Murray had changed his clothing and covered a bullet hole in his windshield with a towel after the shooting. In addition to all the above, there was physical evidence inconsistent with Murray's explanation of events: Murray had stated that he discarded Canada's purse before he shot her, yet her purse was recovered many yards from her body with her blood on it.
The only evidence of a struggle between Murray and Canada was Murray's statements to the police. The Murphy's video showed aggression by Murray only, not Canada. Murray was seen shooting a gun within feet of Canada, who was sitting in the truck, and then physically pulling her from the cab of his truck. Further, the presence of Canada's blood in the cab of Murray's truck is no evidence that she attacked him.
The jury is the sole arbiter of witness credibility and evidence weight. Gilbert v. State, 429 S.W.3d 19, 21 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd). The jury was free to reject Murray's unsubstantiated version of events. See id.
"When the record supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict and therefore defer to that determination." Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). We conclude that there is legally sufficient evidence from which a rational jury could have determined beyond a reasonable doubt that Murray's use of deadly force was not in response to deadly force by Canada and, as a result, rejected his self-defense theory.
We overrule Murray's first issue.
Motion to Suppress
Murray does not challenge the admissibility of his statement to Hart implicating himself in the shooting of a woman in Alvin or the Murphy's video. Instead, he challenges the admissibility of statements he made to Mink and Waldrop after he flagged down Hart. Murray makes several arguments why the denial of his motion to suppress these later statements was error, but he fails to address how the denial, if erroneous, harmed him or even to identify the proper harm analysis that applies. Because Murray cannot establish harm even under the most stringent of possible standards, we will evaluate his claim of error under the harm analysis for constitutional error.
At oral argument, Murray acknowledged that he received Miranda warnings from Hart before he gave the two statements he has challenged, thereby casting doubt that a constitutional-harm analysis would apply to the denial of his motion to suppress those two statements.
A. Standard of review
A ruling on a motion to suppress evidence is reviewed for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002).
A judgment of conviction obtained after constitutional error will be reversed unless the reviewing court determines beyond a reasonable doubt that the error did not contribute to the conviction. TEX. R. APP. P. 44.2(a); McCarthy v. State, 65 S.W.3d 47, 52 (Tex. Crim. App. 2001). "We must review whether the admission of appellant's statement contributed to the jury's verdict of guilty in this cause, regardless of whether there is evidence independent of the statement that is otherwise sufficient to sustain the jury's verdict of guilt." McCarthy, 65 S.W.3d at 55. If we conclude beyond a reasonable doubt that the jury's verdict "would have been the same" even if the erroneous evidence had not been admitted, the error is harmless. Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007). "If there is a reasonable likelihood that the error materially affected the jury's deliberations, then the error is not harmless beyond a reasonable doubt." McCarthy, 65 S.W.3d at 55.
In determining whether constitutional error in the admission of evidence is harmless, we consider several factors, including (1) the importance of the evidence to the State's case, (2) whether the evidence was cumulative of other evidence, (3) the presence or absence of other evidence corroborating or contradicting the evidence on material points, (4) the overall strength of the State's case, and (5) any other factor, as revealed by the record, that may shed light on the probable impact of the error on the average juror. See Clay, 240 S.W.3d at 904.
B. Overwhelming evidence of guilt makes any error harmless
The State offered substantial evidence of Murray's guilt from sources independent of his challenged statements. Thus, the fourth factor—the overall strength of the State's case—is the dominant factor in our analysis.
There are videos placing Murray with Canada for two and one-half hours before her death. There is video evidence of Murray acting aggressively toward Canada, shooting a weapon across the front of his truck with Canada just feet away in the passenger seat. There is physical evidence located at the scene where Canada was found linking Murray's truck to that location, including an owner's manual for a Dodge truck matching Murray's truck and Canada's bicycle and purse which had been in Murray's truck just minutes earlier. Additionally, 9-millimeter Luger cartridge casings were found near where Canada was located and near where Murray flagged down Hart. Moreover, less than ten minutes had elapsed between the time when Murray shot a weapon across the cab of his truck at Murphy's with Canada inside the cab and when the police receiving a call that Canada was on the side of the road injured.
Further, by the time Murray flagged down Hart, he had changed clothes and was using a towel to cover the bullet hole in his windshield. See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (attempts to conceal incriminating evidence are probative of wrongful conduct and are circumstances of guilt).
Most significantly, Murray freely admitted to shooting a woman in Alvin—a statement he does not argue to be wrongly admitted against him. The United States Supreme Court and Texas Court of Criminal Appeals have both noted the significant weight a jury will place on an incriminating statement by a criminal defendant like the one Murray made and does not challenge. "A defendant's statement, especially a statement implicating [him] in the commission of the charged offense, is unlike any other evidence that can be admitted against the defendant." McCarthy, 65 S.W.3d. at 55-56. In fact, it "is probably the most probative and damaging evidence that can be admitted against him." Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (quoting Bruton v. United States, 391 U.S. 123, 139-40 (1968) (White, J., dissenting)). It is "likely to leave an indelible impact on a jury." McCarthy, 65 S.W.3d. at 55. "If the jury believes that a defendant has admitted the crime, it doubtless will be tempted to rest its decision on that evidence . . . ." Fulminante, 499 U.S. at 313 (Kennedy, J., concurring) (noting that only other evidence that would have relative strength would be videotape of crime).
With Murray's unchallenged incriminating statement to Hart that he shot a woman in Alvin, video and physical evidence linking Murray to Canada the morning of her shooting, video evidence of Murray discharging a weapon within a few feet of Canada ten minutes before she was shot in the head, and without any evidence supporting Murray's assertion of self-defense other than his uncorroborated, self-serving statements, the jury was presented with strong evidence of guilt without regard to Murray's later statements he seeks to challenge, which, more than anything, sought to bolster his self-defense claim.
This body of evidence distinguishes these facts from those in which error has been held to not be harmless. See, e.g., McCarthy, 65 S.W.3d at 56 (describing erroneously admitted statement as "powerful enough to establish her guilt" without any additional evidentiary support and noting that statement supplied motive for crime); Martinez v. State, No. 13-03-00388-CR, 2010 WL 2029075, at *5 (Tex. App. —Corpus Christi May 13, 2010, pet. ref'd) (mem. op., not designated for publication) (defendant's presence at location of murder, involvement in offense, and knowledge of intent to commit offense were established only through erroneously admitted statement). On this record, we are persuaded beyond a reasonable doubt that the jury's verdict of conviction would have been the same even if the trial court had not admitted the challenged statements made to Mink and Waldrop.
We also note that, even if the majority of Murray's comments to Mink and Waldrop were inadmissible, his initial, unprompted statement to Mink that he never killed anyone before would be admissible for the same reason his unprompted statement to Hart was admissible: it was a voluntary statement not in response to interrogation. See Stevens v. State, 671 S.W.2d 517, 520 (Tex. Crim. App. 1984); Badall v. State, 216 S.W.3d 865, 868-69 (Tex. App.—Beaumont 2007, pet. ref'd.).
We conclude that the evidence of guilt was overwhelming without regard to Murray's statements he challenges on appeal; therefore, any error in admitting those statements was harmless beyond a reasonable doubt. We overrule Murray's second and third issues.
Charge Error
Only one criminal offense was presented to the jury in the court's charge—murder. Murray unsuccessfully moved for directed verdict on the murder charge, arguing that the State failed to disprove his justification defense of self-defense. Murray asserted that the "self-defense theory has been present from the beginning of this case" and that the State failed to disprove it. The trial court denied Murray's motion for directed verdict. It included the issue of self-defense in the court's charge, and the jury rejected that defense.
In his fourth and final issue, Murray contends that the trial court erred by denying his request that the court's charge include a question on manslaughter as a lesser-included offense of murder.
A. Standard of review and applicable law
When a defendant raises a claim of jury-charge error, we apply the procedure set forth in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). We first determine whether there was error in the charge. McIntosh v. State, 297 S.W.3d 536, 542 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd). If error exists, we then consider whether the error was harmful. Almanza, 686 S.W.2d at 172; McIntosh, 297 S.W.3d at 542. An erroneous jury charge requires reversal when the defendant has properly objected to the charge and we find "some harm" to his rights. Almanza, 686 S.W.2d at 171 (emphasis omitted).
To obtain a charge on a lesser-included offense, (1) the requested instruction must be for a lesser-included offense of the charged offense under Article 37.09 of the Code of Criminal Procedure, and (2) there must be "some evidence" that, if the defendant is guilty, he is guilty of only the lesser-included offense. Flores v. State, 245 S.W.3d 432, 439 (Tex. Crim. App. 2008).
A person commits murder if he (1) "intentionally or knowingly causes the death of an individual" or (2) "intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual . . . ." TEX. PENAL CODE § 19.02(b)(1)-(2). A person commits manslaughter "if he recklessly causes the death of an individual." Id. § 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." Id. § 6.03(c). Manslaughter is a lesser-included offense of murder. See TEX. CODE CRIM. PROC. art. 37.09(3); Schroeder v. State, 123 S.W.3d 398, 400 (Tex. Crim. App. 2003).
B. No error in refusing manslaughter question
Murray's defense at trial was that he acted in self-defense. He moved for a directed verdict on that basis, asserting that the State failed to disprove his self-defense theory. He also obtained an instruction in the court's charge on self-defense. At the same time he was arguing that he acted in self-defense, Murray sought to have an alternative, lesser charge submitted to the jury of manslaughter, meaning that he acted recklessly in shooting Canada.
Texas courts have concluded that the justification of self-defense is inconsistent with a claim that the defendant acted only recklessly. See, e.g., Martinez v. State, 16 S.W.3d 845, 848 (Tex. App.—Houston [1st Dist.] 2000, pet. ref'd) (holding that "one cannot accidentally or recklessly act in self-defense"); Avila v. State, 954 S.W.2d 830, 843 (Tex. App.—El Paso 1997, pet. ref'd) (holding defendant's testimony he acted in self-defense precluded instruction on reckless discharge of weapon); Johnson v. State, 915 S.W.2d 653, 659 (Tex. App.— Houston [14th Dist.] 1996, pet. ref'd) (stating that people "cannot accidentally or recklessly act in self-defense"); Mock v. State, 848 S.W.2d 215, 219 (Tex. App.—El Paso 1992, pet. ref'd) (same).
An exception applies, and a manslaughter instruction may be appropriate, on evidence that the defendant accidentally discharged his weapon instead of intentionally firing it. See O'Brien v. State, 89 S.W.3d 753, 756 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd) (relying on "some evidence that the gun accidentally went off after [the defendant] was hit by the board"); Hayes v. State, 728 S.W.2d 804, 809-10 (Tex. Crim. App. 1987) (noting some evidence that "actual discharge of the gun was accidental, occurring during a struggle between appellant and the complainant"). But when there is no evidence that the defendant accidentally discharged the weapon, the O'Brien "category of cases" is "inapposite." Nevarez v. State, 270 S.W.3d 691, 695 (Tex. App.—Amarillo 2008, no pet.).
Murray argued that he acted in self-defense. There is no evidence that he discharged his weapon accidentally. His brief fails to distinguish the Martinez line of cases or suggest that the facts of this case fall within the O'Brien line of cases. Without any evidence of an accidental discharge of his gun and given that he presented a self-defense theory throughout the trial, we conclude that the trial court did not err in refusing to charge the jury on manslaughter as a lesser-included offense of murder.
We overrule Murray's fourth issue.
Judgment Reformation to Include Deadly Weapon Finding
Appellate Rule 43.2(b) authorizes appellate courts to modify trial court judgments and affirm them as modified. TEX. R. APP. P. 43.2(b). Rule 43.6 authorizes us to make any other appropriate orders that the law and the nature of the case require. TEX. R. APP. P. 43.6. The Court of Criminal Appeals has affirmed judgments modified by appellate courts to reflect the juries' deadly-weapon findings, including one in which the indictment identified a deadly weapon and the jury found the defendant guilty "as charged in the indictment." See French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (citing Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.—Dallas 1991, pet. ref'd) (en banc)). Here, the indictment listed a "firearm" as the weapon used to commit the offense, the jury received evidence that Murray shot Canada with a firearm, causing her death, and the jury found Murray guilty "as charged in the indictment." A firearm is a deadly weapon. Stewart v. State, 532 S.W.2d 349, 350 (Tex. Crim. App. 1976). We modify the judgment concerning the deadly-weapon finding to replace "N/A" with "Yes, a firearm."
Conclusion
We affirm the judgment as modified.
Harvey Brown
Justice Panel consists of Chief Justice Radack and Justices Massengale and Brown. Do not publish. TEX. R. APP. P. 47.2(b).