In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-12-00316-CR
ALLEN BOLING, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 364th District Court Lubbock County, Texas Trial Court No. 2012-434,617, Honorable Cecil Puryear, Presiding
August 26, 2013
MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, Allen Boling, appeals his conviction for capital murder.1 The State did
not seek the death penalty and appellant was automatically sentenced to life in the
Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ) without the
possibility of parole.2 Appellant appeals contending that the trial court committed
1 See TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2012). 2 See id. § 12.31(a) (West 2011). reversible error by denying his request for a lesser-included offense instruction on
criminally negligent homicide in its charge to the jury. We will affirm.
Factual and Procedural Background
In January of 2011, appellant was living with his girlfriend, Mary Geralds, in a
trailer home in rural Lubbock County. Mary’s 16 year old daughter, MG, also resided
with them. On January 19, 2011, appellant learned that the deceased, Russell
McKinney, had been accused of raping MG the previous week. As a result of MG’s
outcry, a 911 call was placed to the Lubbock County Sheriff’s Office. A deputy sheriff
was dispatched and took an initial report regarding the alleged rape. The deputy
advised Mary to go to the sheriff’s office the next day to follow up on the report.
Following the report to the sheriff’s deputy, appellant and his friend, John
Giddings, left the trailer and proceeded to McKinney’s trailer home. Appellant and
McKinney knew each other, and appellant had become angry at McKinney because
McKinney had been in contact with Mary while appellant was out of the trailer home
appellant shared with her.
When appellant and Giddings arrived at McKinney’s trailer, appellant raced
around the trailer until he found a door unlocked. Appellant went in the trailer and
proceeded toward McKinney’s bedroom. On the way to McKinney’s bedroom, appellant
found a large metal pipe which he picked up. McKinney was asleep in his bedroom
and, as soon as appellant got into the room, he proceeded to beat McKinney with the
metal pipe. Appellant admitted to hitting McKinney four to six times with the pipe. His
blows struck McKinney on the head, upper torso, arms, and legs. Appellant and
2 Giddings left the trailer only to return to retrieve the pipe and take a “PlayStation” found
in the trailer. Appellant admitted that, when he returned to the trailer, he heard
McKinney choking on his own blood.
At the conclusion of the testimonial phase of the trial, the trial court presented a
proposed jury charge. Contained in the court’s charge, in addition to the charge of
capital murder, were the lesser-included charges of murder, manslaughter, and
aggravated assault. Appellant requested an additional lesser-included offense of
criminally negligent homicide. The trial court denied the request for the additional
lesser-included offense. The jury subsequently convicted appellant of the greater
offense of capital murder. Appellant was sentenced to life in the ID-TDCJ without the
possibility of parole.
Appellant appeals contending that the refusal of the trial court to give the lesser-
included charge of criminally negligent homicide was reversible error. We disagree and
will affirm.
Standard of Review
In reviewing allegations of charge error, we first must ask the question whether
there was error in the charge. Sakil v. State 287 S.W.3d 23, 25 (Tex.Crim.App. 2009).
If there was error and if the appellant objected to the error at trial, reversal is required if
the error is calculated to injure the rights of the appellant. Id. Stated another way, there
must be some harm to the appellant. Id. at 25-26. In the case before the Court, the
parties agree that appellant’s objection to the lack of the lesser-included charge was
made at the appropriate time.
3 Lesser-Included Offenses
A reviewing court applies a two-prong test to determine if an appellant was
entitled to a lesser-included instruction. See Hall v. State, 225 S.W.3d 524, 535
(Tex.Crim.App. 2007). The first question requires our determination of “whether the
lesser offense actually is a lesser-included offense of the offense charged as defined by
article 37.09.” Hall v. State, 158 S.W.3d 470, 473 (Tex.Crim.App. 2005); see TEX. CODE
CRIM. PROC. ANN. art. 37.09 (West 2012).3 This first question is a question of law that
requires the court to compare the elements as alleged. See Hall, 225 S.W.3d at 535-
36.
The second prong requires that there be some evidence in the record to permit a
rational jury to find, if the appellant is guilty, he is guilty only of the lesser-included
offense. See id. at 536. Any evidence more than a scintilla may be sufficient to entitle
an appellant to a lesser-included charge. See id. We review the entire record without
deciding if the evidence is credible, controverted, or in conflict with other evidence. Hall,
158 S.W.3d at 473. The evidence may show a person is guilty of only the lesser
offense if the evidence refutes or negates other evidence that establishes the greater
offense, or the evidence may be subject to differing interpretations. Cavazos v. State,
382 S.W.3d 377, 385 (Tex.Crim.App. 2012).
3 Further reference to the Texas Code of Criminal Procedure will be by reference to “art. ____.”
4 Analysis
In the case before the Court, we and the parties agree that criminally negligent
homicide is a lesser-included offense of capital murder as a matter of law. See
Saunders v. State, 840 S.W.2d 390, 391 (Tex.Crim.App. 1992); see generally art.
37.09. Therefore, we will address only the second prong of the test to determine if the
appellant was entitled to the requested lesser-included offense instruction. See Hall,
225 S.W.3d at 535.
In order for appellant to prevail, there must be more than a scintilla of evidence
that shows that appellant acted with criminal negligence in causing the death of
McKinney. That is to say, there must be more than a scintilla of evidence to show that
appellant was unaware of the risk his conduct created. See Mendieta v. State, 706
S.W.2d 651, 653 (Tex.Crim.App. 1986). Appellant contends that his voluntary
statement to the police entitles him to a lesser-included offense instruction on criminally
negligent homicide because it shows: 1) appellant was so angry that he was unaware of
the risk of his conduct, 2) his initial shock at the severity of the result, and 3) upon return
to get the metal pipe, no further damage was done to McKinney. However, the record
further demonstrates that appellant went to McKinney’s residence for the express
purpose of giving McKinney some vigilante justice and, in so doing, appellant intended
to “kick his ass.” Further, appellant stated in his statement that he knew he hurt
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-12-00316-CR
ALLEN BOLING, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 364th District Court Lubbock County, Texas Trial Court No. 2012-434,617, Honorable Cecil Puryear, Presiding
August 26, 2013
MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, Allen Boling, appeals his conviction for capital murder.1 The State did
not seek the death penalty and appellant was automatically sentenced to life in the
Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ) without the
possibility of parole.2 Appellant appeals contending that the trial court committed
1 See TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2012). 2 See id. § 12.31(a) (West 2011). reversible error by denying his request for a lesser-included offense instruction on
criminally negligent homicide in its charge to the jury. We will affirm.
Factual and Procedural Background
In January of 2011, appellant was living with his girlfriend, Mary Geralds, in a
trailer home in rural Lubbock County. Mary’s 16 year old daughter, MG, also resided
with them. On January 19, 2011, appellant learned that the deceased, Russell
McKinney, had been accused of raping MG the previous week. As a result of MG’s
outcry, a 911 call was placed to the Lubbock County Sheriff’s Office. A deputy sheriff
was dispatched and took an initial report regarding the alleged rape. The deputy
advised Mary to go to the sheriff’s office the next day to follow up on the report.
Following the report to the sheriff’s deputy, appellant and his friend, John
Giddings, left the trailer and proceeded to McKinney’s trailer home. Appellant and
McKinney knew each other, and appellant had become angry at McKinney because
McKinney had been in contact with Mary while appellant was out of the trailer home
appellant shared with her.
When appellant and Giddings arrived at McKinney’s trailer, appellant raced
around the trailer until he found a door unlocked. Appellant went in the trailer and
proceeded toward McKinney’s bedroom. On the way to McKinney’s bedroom, appellant
found a large metal pipe which he picked up. McKinney was asleep in his bedroom
and, as soon as appellant got into the room, he proceeded to beat McKinney with the
metal pipe. Appellant admitted to hitting McKinney four to six times with the pipe. His
blows struck McKinney on the head, upper torso, arms, and legs. Appellant and
2 Giddings left the trailer only to return to retrieve the pipe and take a “PlayStation” found
in the trailer. Appellant admitted that, when he returned to the trailer, he heard
McKinney choking on his own blood.
At the conclusion of the testimonial phase of the trial, the trial court presented a
proposed jury charge. Contained in the court’s charge, in addition to the charge of
capital murder, were the lesser-included charges of murder, manslaughter, and
aggravated assault. Appellant requested an additional lesser-included offense of
criminally negligent homicide. The trial court denied the request for the additional
lesser-included offense. The jury subsequently convicted appellant of the greater
offense of capital murder. Appellant was sentenced to life in the ID-TDCJ without the
possibility of parole.
Appellant appeals contending that the refusal of the trial court to give the lesser-
included charge of criminally negligent homicide was reversible error. We disagree and
will affirm.
Standard of Review
In reviewing allegations of charge error, we first must ask the question whether
there was error in the charge. Sakil v. State 287 S.W.3d 23, 25 (Tex.Crim.App. 2009).
If there was error and if the appellant objected to the error at trial, reversal is required if
the error is calculated to injure the rights of the appellant. Id. Stated another way, there
must be some harm to the appellant. Id. at 25-26. In the case before the Court, the
parties agree that appellant’s objection to the lack of the lesser-included charge was
made at the appropriate time.
3 Lesser-Included Offenses
A reviewing court applies a two-prong test to determine if an appellant was
entitled to a lesser-included instruction. See Hall v. State, 225 S.W.3d 524, 535
(Tex.Crim.App. 2007). The first question requires our determination of “whether the
lesser offense actually is a lesser-included offense of the offense charged as defined by
article 37.09.” Hall v. State, 158 S.W.3d 470, 473 (Tex.Crim.App. 2005); see TEX. CODE
CRIM. PROC. ANN. art. 37.09 (West 2012).3 This first question is a question of law that
requires the court to compare the elements as alleged. See Hall, 225 S.W.3d at 535-
36.
The second prong requires that there be some evidence in the record to permit a
rational jury to find, if the appellant is guilty, he is guilty only of the lesser-included
offense. See id. at 536. Any evidence more than a scintilla may be sufficient to entitle
an appellant to a lesser-included charge. See id. We review the entire record without
deciding if the evidence is credible, controverted, or in conflict with other evidence. Hall,
158 S.W.3d at 473. The evidence may show a person is guilty of only the lesser
offense if the evidence refutes or negates other evidence that establishes the greater
offense, or the evidence may be subject to differing interpretations. Cavazos v. State,
382 S.W.3d 377, 385 (Tex.Crim.App. 2012).
3 Further reference to the Texas Code of Criminal Procedure will be by reference to “art. ____.”
4 Analysis
In the case before the Court, we and the parties agree that criminally negligent
homicide is a lesser-included offense of capital murder as a matter of law. See
Saunders v. State, 840 S.W.2d 390, 391 (Tex.Crim.App. 1992); see generally art.
37.09. Therefore, we will address only the second prong of the test to determine if the
appellant was entitled to the requested lesser-included offense instruction. See Hall,
225 S.W.3d at 535.
In order for appellant to prevail, there must be more than a scintilla of evidence
that shows that appellant acted with criminal negligence in causing the death of
McKinney. That is to say, there must be more than a scintilla of evidence to show that
appellant was unaware of the risk his conduct created. See Mendieta v. State, 706
S.W.2d 651, 653 (Tex.Crim.App. 1986). Appellant contends that his voluntary
statement to the police entitles him to a lesser-included offense instruction on criminally
negligent homicide because it shows: 1) appellant was so angry that he was unaware of
the risk of his conduct, 2) his initial shock at the severity of the result, and 3) upon return
to get the metal pipe, no further damage was done to McKinney. However, the record
further demonstrates that appellant went to McKinney’s residence for the express
purpose of giving McKinney some vigilante justice and, in so doing, appellant intended
to “kick his ass.” Further, appellant stated in his statement that he knew he hurt
McKinney. The conclusion we reach is that appellant’s actual contention is that he did
not intend to cause the amount of damage or severity of injury to McKinney that he
caused.
5 This is the same argument the appellant made in Amis v. State, 87 S.W.3d 582,
586 (Tex.App.—San Antonio 2002, pet. ref’d), and the court rejected the contention that
Amis was entitled to an instruction on criminally negligent homicide because Amis
testified that he did not intend to cause the amount of harm to the victim. The court held
that such testimony did not show that Amis was unaware of the risk his conduct created.
Id. Similarly, in Gadsden v. State, 915 S.W.2d 620, 622-23 (Tex.App.—El Paso 1996,
no pet.), the court found, even if you could speculate that Gadsden did not intend the
result, that does not change his awareness of the risk involved with his conduct. We
agree with the reasoning of our sister courts that evidence that merely shows a person
did not intend the amount of harm does not necessarily make them unaware of the risk
of his or her conduct. See Amis, 87 S.W.3d at 586; Gadsden, 915 S.W.2d at 622-23.
Our review of this entire record demonstrates that, at most, appellant may not
have intended the amount of harm that he caused McKinney. However, this does not
rise to more than a scintilla of evidence that he was unaware of the risk posed by
beating a person multiple times with a metal pipe. See Mendieta, 706 S.W.2d at 653.
Thus, the evidence at trial did not show that, if the appellant was guilty, he was only
guilty of the lesser-included offense of criminally negligent homicide. See Hall, 225
S.W.3d at 536. As such, appellant was not entitled to a jury charge instruction on
criminally negligent homicide and the trial court did not err in denying appellant’s
request for same. Accordingly, appellant’s single issue is overruled.
6 Conclusion
Having overruled appellant’s single issue, we affirm the judgment of the trial
court.
Mackey K. Hancock Justice
Do not publish.