Opinion
No. 11-05-00219-CR
June 8, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 220th District Court, Comanche County, Texas, Trial Court Cause No. 04-10-02667-Cccr.
Panel consists of: WRIGHT, C.J., and McCALL, J., and STRANGE, J.
OPINION
The jury convicted Michael Scott Townsend of attempted capital murder and assessed his punishment at forty years confinement. We affirm. There is no challenge to the sufficiency of the evidence. On September 30, 2004, at approximately 1:00 a.m., Comanche Police Officer Ben Rowell was on patrol. Officer Rowell was looking for a white Ford Taurus that had been reported stolen. He saw a vehicle matching the description near appellant's business. Appellant got out of the vehicle and was trying to unlock the gate when Officer Rowell pulled in behind him. Appellant jumped the fence, and Officer Rowell announced that he was an officer and yelled for appellant to stop. Appellant then turned and fired two shots at Officer Rowell. Officer Rowell returned fire. Officer Rowell returned to his police car and called for backup. Other officers arrived and began to search for appellant. The officers went to a nearby residence where an unlawful entry had been reported. Suzanne Jones testified that appellant broke a latch on her door and entered her home. She stated that appellant appeared very nervous and that he left when he saw the police lights. The officers heard shots at another residence and went to that area. Officer Rowell and Deputy Robert Jolley took cover in the carport area of the residence, and they saw appellant through the window of the residence. Appellant had a gun. Officer Rowell testified that appellant turned toward the window and raised the gun in the officers' direction and that Officer Rowell and Deputy Jolley both fired at the residence. Deputy Jolley testified that appellant fired at the officers first and that they returned fire. Officer Rowell and Deputy Jolley both testified that appellant fired in their direction from inside the residence. One of the shots fired by appellant struck Deputy Jolley. Deputy Jolley was bleeding from his head and had to retreat to another location for assistance. Appellant continued to fire from inside the residence. Appellant then yelled to the officers that he was injured and was coming out of the residence. Appellant was ordered to come out of the house with his hands up and lie down on the ground. Appellant was handcuffed, and the officers conducted a "pat down" search for weapons. The officers found a pistol in appellant's pocket as well as a hypodermic needle. Appellant was taken to the hospital and treated for a bullet wound to his hip. Deputy Jolley suffered injuries to his head, neck, and shoulder as a result of shots fired by appellant. In his first and second issues on appeal, appellant complains that the trial court erred in denying his requested jury instructions on the lesser included offenses of manslaughter and criminally negligent homicide. A defendant is entitled to a charge on a lesser offense only if the lesser included offense is included within the proof necessary to establish the offense charged and only if there is some evidence that would permit the jury rationally to find that, if the defendant is guilty, he is guilty only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App. 1993). The credibility of the evidence and whether it conflicts with other evidence or is controverted may not be considered in determining whether an instruction on a lesser included offense should be given. See Banda v. State, 890 S.W.2d 42, 60 (Tex.Crim.App. 1994). Regardless of its strength or weakness, if any evidence raises the issue that the defendant was guilty only of the lesser included offense, then the charge must be given. See Medina v. State, 7 S.W.3d 633, 638 (Tex.Crim.App. 1999). Appellant was charged with and convicted of the offense of attempted capital murder. A person commits an attempt offense if "with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended." TEX. PEN. CODE ANN. § 15.01(a) (Vernon 2003). A person commits manslaughter if he recklessly causes the death of an individual. TEX. PEN. CODE ANN. § 19.04 (Vernon 2003). A person acts recklessly when he is aware of but consciously disregards a substantial and unjustifiable risk. TEX. PEN. CODE ANN. § 6.03(c) (Vernon 2003). A person commits criminally negligent homicide if he causes the death of someone by criminal negligence. TEX. PEN. CODE ANN. § 19.05 (Vernon 2003). A person acts with criminal negligence when he should be aware of a substantial and unjustifiable risk. TEX. PEN. CODE ANN. § 6.03(d) (Vernon 2003). For a person to commit an offense under Section 15.01(a), the attempt statute, the person must have "the specific intent to commit" the offense attempted. The attempt statute does not apply when the culpable mental state for the offense attempted is less than knowing. Gonzales v. State, 532 S.W.2d 343, 345 (Tex.Crim.App. 1976); Strong v. State, 87 S.W.3d 206, 217 (Tex.App.-Dallas 2002, pet. ref'd); Yandell v. State, 46 S.W.3d 357, 361 (Tex.App.-Austin 2001, pet. ref'd). Therefore, Section 15.01(a) does not apply to manslaughter and criminally negligent homicide, and the trial court did not err in refusing to give the requested instructions. Appellant's first and second issues on appeal are overruled. In his third and fourth issues on appeal, appellant argues that the trial court erred in excluding testimony. A trial court's decision to admit or exclude evidence is reviewed under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001). An appellate court will not reverse a trial court's ruling unless that ruling falls outside the zone of reasonable disagreement. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003); Burden, 55 S.W.3d at 615. Appellant complains in his third issue on appeal that the trial court erred in excluding testimony concerning a conversation appellant's mother had with Deputy Jolley. During the cross-examination of Deputy Jolley, appellant's attorney asked whether Deputy Jolley remembered a conversation with appellant's mother after the offense. The State objected to relevance, and the trial court allowed appellant to develop the connection. Appellant's attorney asked if Deputy Jolley remembered appellant's mother "crying and stating how sorry she was this had happened." Deputy Jolley responded "yes," and the State again objected to relevance. Appellant's attorney then asked whether Deputy Jolley remembered telling appellant's mother that "it wasn't [appellant, it] was the drugs." Deputy Jolley responded "no"; however, the trial court sustained the State's objection. Appellant's attorney asked if Deputy Jolley denied making that statement, and the trial court again sustained the State's objection to the question. Appellant called his mother to testify on his behalf. During direct-examination, appellant's attorney asked about her conversation with Deputy Jolley. Appellant's mother testified that she told Deputy Jolley that she was "sorry about this situation that had happened." The State objected to rele-vance, and the trial court continued the questioning outside the presence of the jury. Appellant's mother stated that Deputy Jolley told her "[t]hat was not [appellant] that shot me, but the drugs. . . . That's what drugs do to people." Appellant's attorney informed the trial court that he was offering the statement to impeach the testimony of Deputy Jolley. The trial court did not allow the statement to be heard by the jury on the basis that it was "on a collateral issue." We agree that the statement was on a collateral issue. TEX. R. EVID. 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." For evidence to be relevant, it should be "helpful in determining the truth or falsity of any fact that is of consequence to the lawsuit." Montgomery v. State, 810 S.W.2d 372, 376 (Tex.Crim.App. 1991); Felan v. State, 44 S.W.3d 249, 255 (Tex.App.-Fort Worth 2001, pet. ref'd). The trial court did not err in excluding the evidence. Appellant's third issue on appeal is overruled. In his fourth issue on appeal, appellant complains that the trial court erred in excluding the testimony of his father. During the examination of appellant's father, appellant's attorney asked about appellant's experience with firearms and hunting. The State objected to relevance, and the trial court allowed a little "latitude." Appellant's attorney asked, "Is this incident that took place with [appellant] here — we're here today totally out of character for him?" The trial court sustained the State's objection. Appellant contends that the evidence was relevant character evidence pursuant to TEX. R. EVID. 404(a)(1)(A). Rule 404(a)(1)(A) allows the accused to offer evidence of a "pertinent character trait." A pertinent trait is "one that relates to a trait involved in the offense charged or a defense raised." Spector v. State, 746 S.W.2d 946, 950 (Tex.App.-Austin 1988, pet. ref'd). The excluded testimony was not evidence of a pertinent character trait of appellant. The trial court did not abuse its discretion in sustaining the State's objection to appellant's question. Appellant's fourth issue on appeal is overruled. The judgment of the trial court is affirmed.