No. 05-04-00405-CR
Opinion issued February 3, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 294th Judicial District Court Van Zandt County, Texas, Trial Court Cause No. 16,818. Affirmed.
Before Justices MOSELEY, FRANCIS, and MAZZANT.
Opinion By Justice MAZZANT.
Gary Don Strickland appeals his conviction for murder. After the trial court overruled appellant's motion to suppress, a jury found appellant guilty and assessed punishment at life imprisonment. Appellant now complains the court erred by denying (1) his motion to suppress and (2) his request for the submission of a jury instruction on the lesser-included offense of manslaughter. We affirm the trial court's judgment.
Background
Appellant and Garvin Sharp were temporarily staying in the home of Phillip Cascavilla while they built a fence for him. On the night of August 15 around 10:00 or 10:30 p.m., Cascavilla returned home and found Sharp's deceased body in his upstairs bathroom. Sharp's truck was gone, and appellant was not at the house. Three televisions and several guns were missing. Cascavilla contacted the sheriff's department. Deputy sheriff Richard Goldey was dispatched to Cascavilla's home and arrived a little after 11:00 p.m. Cascavilla informed him that another man had been there working with Sharp, and Goldey found items in one of the upstairs bedrooms that belonged to appellant; these items contained appellant's name. Also among the items was an envelope showing a return address for Marie Strickland, appellant's grandmother, in Big Sandy, Texas. Detectives talked to Sharp's brother, who identified appellant as the man who had been working with Sharp. Sharp's brother told detectives he had picked up appellant at a bus station and appellant was working on the fence with Sharp. Later that night, Goldey received word that Sharp's truck had been found. The Upshur County sheriff's department had issued a "be on lookout" notice regarding a white Chevrolet truck-Sharp's truck. The notice contained information that there had been a homicide in Van Zandt County and the suspect could be driving that truck. Deputy Wade Davis and his field training officer received the notice around 1:30 a.m on August 16 while they were on patrol. About 90 minutes later, they saw the truck on Highway 80 traveling toward Big Sandy. They passed the truck and turned around, trying to catch up with the truck. After a few turns, they found the truck in the middle of the street. The lights were on, and the motor was still running. The driver's side door was open. No one was in the vehicle. Later that morning, the Big Sandy chief of police contacted the Van Zandt County Sheriff's Department. He stated he had been contacted by Marie Strickland who reported appellant had arrived at her house on foot. Appellant told her he was going to rest. Big Sandy is located approximately ten miles from where the truck was found. Van Zandt County deputy sheriff George Pelphrey also participated in the investigation. He requested the issuance of an arrest warrant for appellant and obtained a warrant that same day, August 16. The affidavit on which the warrant was based included the following information, revealed through the investigation: *
Cascavilla informed deputies an unidentified black male had been staying at his house along with Sharp. Papers discovered at the house and Sharp's brother identified that man as appellant.
*
Sharp had driven them both to Cascavilla's house.
*
Both Sharp's truck and appellant were missing after the murder.
*
Televisions and guns were missing from Cascavilla's house after the murder.
*
Officers saw the truck on the highway, turned around to follow it, then found it abandoned. The motor was still running, and the driver's side door was open.
*
Appellant showed up at his grandmother's house seven hours after the truck was abandoned, on foot, saying he was going to go rest.
After they received the warrant, Upshur County deputies went to appellant's grandmother's house and arrested him. After he was arrested, appellant gave a written statement to the Van Zandt County deputies stating he and Sharp had found guns at Cascavilla's house and pointed them at each other. Appellant stated Sharp, upstairs at the time, shot at him while he was standing downstairs near the front door. Appellant further stated, "I chased him up the stairs . . . and shot Garvin one time in the back of the head. When he fell into the bathroom by the tub, I shot him three more times. . . ." Before trial, appellant filed a motion to suppress his written statement. He argued the affidavit did not set forth sufficient probable cause for the warrant to issue, thereby making the arrest illegal and the statement obtained after that arrest inadmissible as fruits of the alleged illegal arrest. The court overruled appellant's motion, and the case proceeded to trial. During trial, appellant testified that his cousin and an unknown man came to Cascavilla's house on the night of the shooting to bring appellant drugs. He said they arrived, and the three of them smoked marijuana. His cousin then asked about televisions, asking if appellant and Sharp would "make like somebody broke in." Sharp said he would not, then he began to get sick, running to the bathroom upstairs. Appellant then heard gunshots and ran upstairs. Appellant's cousin was standing behind Sharp, holding the gun. Sharp was lying on the floor. Appellant said he was scared, and he helped his cousin load the televisions and guns into Sharp's truck. Appellant and his cousin left in Sharp's truck, and the unknown man left in another car. Motion to Suppress
In his first issue, appellant argues the court erred in denying his motion to suppress his confession. Appellant contends the confession was obtained as the result of an illegal arrest-illegal because the warrant was not supported by probable cause. We disagree. In determining the sufficiency of an affidavit for an arrest or search warrant, a reviewing court is limited to the "four corners of an affidavit." Jones v. State, 833 S.W.2d 118, 123 (Tex.Crim.App. 1992). An affidavit is required to contain only probable cause, it need not contain sufficient evidence that would convince a jury of the defendant's guilt beyond a reasonable doubt. Janecka v. State, 739 S.W.2d 813, 822-23 (Tex.Crim.App. 1987). Appellate courts are to interpret the affidavit in a common sense and realistic manner, and the impartial magistrate who reviewed the affidavit may have drawn reasonable inferences from the information contained in the affidavit. Jones, 833 S.W.2d at 124; Jones v. State, 568 S.W.2d 847, 855 (Tex.Crim.App. 1978). We are to determine whether the affidavit was supported by "sufficient factual allegations so as to permit the reasonable and logical inference of a nexus between appellant and the crime charged. . . ." Gibbs v. State, 819 S.W.2d 821, 830 (Tex.Crim.App. 1991). We conclude the affidavit contains facts that establish probable cause. Appellant and Sharp went to Cascavilla's house together to work on fences. Cascavilla found Sharp dead in his house, and both appellant and Sharp's truck were missing. Televisions and guns were also missing. Deputies spotted the missing truck, turned around to follow it, and found it abandoned with its engine running. Seven hours later, appellant's grandmother called police to report appellant arrived at her house on foot, ten miles away from where the truck was abandoned, and was going to rest. Based on these facts, as told either directly to the affiant or to other law enforcement personnel, we conclude that the affidavit contained sufficient information with which a detached magistrate could have found probable cause. See Jones, 833 S.W.2d at 124; Gibbs, 819 S.W.2d at 830; Janecka, 739 S.W.2d at 823; Jones, 568 S.W.2d at 855. Appellant argues his case is similar to the facts in Hankins v. State. 132 S.W.3d 380 (Tex.Crim.App. 2004). We distinguish the present case from Hankins. In Hankins, the defendant was married to one of the victims, with whom he had been living, and was found driving her car. The court of criminal appeals held such information in the affidavit was not sufficient to support probable cause for a warrant. In the present case, however, appellant and Sharp were merely staying at Cascavilla's house for a short time while they worked on his fences; appellant and Sharp were not married; there was no information appellant had any reason to be driving Sharp's truck. We conclude instead that the facts in the present affidavit are sufficient to "permit the reasonable and logical inference of a nexus between appellant and the crime charged. . . ." See Gibbs v. State, 819 S.W.2d at 830. We resolve appellant's first issue against him. Lesser-Included Offense
In his second issue, appellant complains the court erred in denying his request for a jury instruction on the lesser-included offense of manslaughter. We disagree. To determine if a defendant is entitled to a lesser-included offense instruction, a two-prong test applies: (1) the lesser-included offense must be included within the proof necessary to establish the offense charged, and (2) some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense. See Lofton v. State, 45 S.W.3d 649, 651 (Tex.Crim.App. 2001); Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App. 1994). Here, we focus on the second element because manslaughter is a lesser-included offense of murder. See Moore v. State, 969 S.W.2d 4, 9 (Tex.Crim.App. 1998). Some evidence directly germane to a lesser-included offense must exist for the fact finder to consider before an instruction on a lesser-included offense is warranted. Bignall, 887 S.W.2d at 24. A person commits murder if he intentionally or knowingly causes the death of an individual. Tex. Pen. Code Ann. § 19.02(b)(1) (Vernon 2003). Manslaughter requires proof that the defendant acted recklessly-that he consciously disregarded a substantial and unjustifiable risk of which he was aware. See Tex. Pen. Code Ann. §§ 6.03(c), 19.04(a) (Vernon 2003). There was evidence before the jury of two possible explanations of Sharp's death: (1) appellant's testimony that he did not shoot Sharp-his cousin did it; and (2) appellant's written statement that he shot Sharp. Neither supports a finding of manslaughter. Appellant's complete denial of shooting Sharp provides no evidence that if he is guilty, he is guilty only of manslaughter. Appellant's written statement likewise provides no evidence that he committed manslaughter. In his statement, appellant said he and Sharp pointed guns at each other, Sharp shot at him, and he chased Sharp up the stairs. Appellant shot Sharp in the back of the head, and he then shot Sharp three more times. This evidence shows that appellant acted intentionally, not recklessly. Although appellant argues in his brief that his statement alludes to some sort of "horseplay," there is no such evidence in the statement. Appellant said in his statement he shot Sharp four times in total, the first being in the back of the head. The evidence does not show appellant acted recklessly, and it does not show appellant acted in any manner other than intentionally. We conclude there was no evidence in the record that would permit a jury rationally to find that if appellant was guilty, he was guilty only of the lesser-included offense of manslaughter. Accordingly, the trial court did not err in denying appellant's requested charge. We resolve appellant's second issue against him We affirm the trial court's judgment.