ACCEPTED 06-14-00130-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 2/2/2015 11:28:07 AM DEBBIE AUTREY CLERK
ORAL ARGUMENT WAIVED FILED IN 6th COURT OF APPEALS CAUSE NO. 06-14-00130-CR TEXARKANA, TEXAS 2/3/2015 11:28:07 AM DEBBIE AUTREY IN THE Clerk
COURT OF APPEALS
SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA ____________________________________________________________
ALVIN PETER HENRY, JR., Appellant
V.
THE STATE OF TEXAS, Appellee ____________________________________________________________
ON APPEAL FROM THE 6TH JUDICIAL DISTRICT COURT LAMAR COUNTY, TEXAS TRIAL COURT NO. 25589; HONORABLE BILL HARRIS, JUDGE ____________________________________________________________
APPELLEE’S (STATE’S) BRIEF ____________________________________________________________
Gary D. Young, County and District Attorney Lamar County and District Attorney’s Office Lamar County Courthouse 119 North Main Paris, Texas 75460 (903) 737-2470 (903) 737-2455 (fax)
ATTORNEYS FOR THE STATE OF TEXAS IDENTITY OF PARTIES AND COUNSEL
Pursuant to Tex. R. App. P. 38.2(a)(1)(A), the list of parties and
counsel is not required to supplement or correct the appellant’s list.
-i- TABLE OF CONTENTS
PAGE:
IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INDEX OF AUTHORITIES . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . viii
STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . x
ISSUE PRESENTED IN REPLY . . . . . . . . . . . . . . . . . . . . . . . . . xi
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . 10
ARGUMENT AND AUTHORITIES
ISSUES PRESENTED IN REPLY NOS. 1 & 2: THE EVIDENCE WAS LEGALLY SUFFICIENT FOR A RATIONAL JURY TO FIND BEYOND A REASONABLE DOUBT THAT THE APPELLANT, HENRY, WAS “ONE AND THE SAME” PERSON LINKED TO THE PRIOR CONVICTIONS. . . . . . . . . . . . . . . . . . . . . . 11
ISSUE PRESENTED IN REPLY NO. 3: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN EXCLUDING THE APPELLANT’S EVIDENCE OF HIS “DIMINISHED CAPACITY” DURING THE GUILT-INNOCENCE PHASE OF THE TRIAL. . . . . . 23
-ii- PAGE:
ISSUE PRESENTED IN REPLY NO. 4: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE APPELLANT’S REQUESTED JURY INSTRUCTION ON “DIMINISHED CAPACITY.” . . . 28
PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . 30
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
-iii- INDEX OF AUTHORITIES
CASES: PAGE:
Abdnor v. State, 871 S.W.2d 726, 731, 732 (Tex. Crim. App. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28,29
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Castillo v. State, 913 S.W.2d 529, 337 (Tex. Crim. App. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Chiles v. State, 57 S.W.3d 512, 518, 519 n.3 (Tex. App.--Waco 2001, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23,24
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim App. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-12
Cooper v. State, 363 S.W.3d 293, 296 (Tex. App.--Texarkana 2012, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12,15
Cowles v. State, 510 S.W.2d 608, 609 (Tex. Crim. App. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Darnes v. State, 118 S.W.3d 916, 918, 919 (Tex. App.--Amarillo 2003, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25,26,27
Davis v. State, 268 S.W.3d 683, 715, 716 (Tex. App.--Fort Worth 2008, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13,14
Ex parte Russell, 738 S.W.2d 644, 647 (Tex. Crim. App. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Flowers v. State, 220 S.W.3d 919, 921, 923 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12,15,19,20,21,22
-iv- CASES: PAGE:
Fuller v. State, 829 S.W.2d 191, 197 (Tex. Crim. App. 1992), overruled on other grounds . . . . . . . . . . . . . . . . . . 13,14
Hart v. State, 314 S.W.3d 37, 40 n. 1 (Tex. App.--Texarkana 2010, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.--Texarkana 2010, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Howard v. State, 896 S.W.2d 401, 406 (Tex. App.--Amarillo 1995, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-14,15
Human v. State, 749 S.W.2d 832, 839 (Tex. Crim. App. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Jackson v. State, 160 S.W.3d 568, 573 (Tex. Crim. App. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Jackson v. State, 115 S.W.3d 326, 328 (Tex. App.--Dallas 2003), aff’d, 160 S.W.3d 568 (Tex. Crim. App. 2005) . . . 24,25,26,27
Jackson v. Virginia, 443 U.S. 307, 318, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Littles v. State, 726 S.W.2d 26, 31 (Tex. Crim. App. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-16
Logan v. State, 482 S.W.2d 229, 232 (Tex. Crim. App. 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
-v- CASES: PAGE:
Mays v. State, 223 S.W.3d 651, 653, 654 (Tex. App.--Texarkana 2007), rev’d, 318 S.W.3d 368, 381, 382 (Tex. Crim. App. 2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1606; 179 L. Ed. 2d 506 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23,24.28, 29
Montgomery v. State, 810 S.W.2d 372, 378-379, 391 (Tex. Crim. App. 1990) (op. on reh’g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.27
Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Rhoten v. State, 299 S.W.3d 349, 355 n. 8 (Tex. App.--Texarkana 2009, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Rosales v. State, 867 S.W.2d 70, 72, 73 (Tex. App.--El Paso 1993, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13,14
Ruffin v. State, 270 S.W.3d 586, 593, 596 (Tex. Crim. App. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Sakil v. State, 287 S.W.3d 23, 25-26 (Tex. Crim. App. 2009) . . 28
Smith v. State, 401 S.W.3d 915, 920 (Tex. App.--Texarkana 2013, pet. ref’d) (Morriss, C.J.) . . . . . . . . . . . . . 11,12,15,19,20,21, 22
Smith v. State, 998 S.W.2d 683, 687, 688 (Tex. App.--Corpus Christi 1999, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14
Wagner v. State, 687 S.W.2d 303, 311, 312 (Tex. Crim. App. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24,25,26,27
Warner v. State, 944 S.W.2d 812, 815-16 (Tex. App.-- Austin 1997, pet. dism’d), 969 S.W. 2d 1 (Tex. Crim. App. 1998) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . 26,27
-vi- CASES: PAGE:
Wilson v. State, 391 S.W.3d 131, 138 (Tex. App.--Texarkana 2012, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28,29
Wright v. State, 932 S.W.2d 572, 576 (Tex. App.--Tyler 1995, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
STATUTES: PAGE:
TEX. R. APP. P. 33.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,15
TEX. R. APP. P. 38.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
TEX. R. APP. P. 38.2(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . i
TREATISES: PAGE:
Texas Criminal Pattern Jury Charges, Defenses, 2010, Volume 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
-vii- STATEMENT OF THE CASE
This is a criminal appeal from the trial court’s final judgment of
conviction (CR, pgs. 93-94) for evading arrest or detention with a motor
vehicle. See Tex. Penal Code Ann. § 38.04(a) (Vernon Supp. 2014).
Following a high-speed chase on December 24, 2013, a grand jury in
Lamar County returned an original indictment against Henry for the felony
offense of evading arrest or detention with a motor vehicle, which also
alleged a deadly weapon. See CR, pg. 5. Later, the State filed an amended
notice the State filed its first amended notice of intent to seek enhanced
sentence as a habitual offender. See CR, pgs. 45-46.
After a jury trial, the jury, by its verdict, found Henry guilty of the
offense of evading arrest or detention with a motor vehicle, as charged in the
indictment. See RR, Vol. 4, pg. 60; CR, pg. 75. On the special issue, the
jury further found beyond a reasonable doubt that Henry did use or exhibit a
deadly weapon, to-wit: a motor vehicle. See RR, Vol. 4, pg. 61; CR, pg. 76.
By its verdict, the jury assessed punishment at confinement for sixty
(60) years in the Texas Department of Criminal Justice, Institutional
Division. See RR, Vol. 4, pg. 144; CR, pg. 83. The trial court pronounced
sentence (RR, Vol. 4, pgs. 145-146) and signed its judgment of conviction.
-viii- See CR, pgs. 93-94. Henry filed notice of appeal. See CR, pg. 92.
-ix- STATEMENT REGARDING ORAL ARGUMENT
The State will waive oral argument. See Tex. R. App. P. 38.2.
-x- ISSUES PRESENTED IN REPLY
ISSUES PRESENTED IN REPLY NOS. 1 & 2: THE EVIDENCE WAS LEGALLY SUFFICIENT FOR A RATIONAL JURY TO FIND BEYOND A REASONABLE DOUBT THAT THE APPELLANT, HENRY, WAS “ONE AND THE SAME” PERSON LINKED TO THE PRIOR CONVICTIONS.
ISSUE PRESENTED IN REPLY NO. 3: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN EXCLUDING THE APPELLANT’S EVIDENCE OF HIS “DIMINISHED CAPACITY” DURING THE GUILT-INNOCENCE PHASE OF THE TRIAL.
ISSUE PRESENTED IN REPLY NO. 4: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE APPELLANT’S REQUESTED JURY INSTRUCTION ON “DIMINISHED CAPACITY.”
-xi- CAUSE NO. 06-14-00130-CR
IN THE
COURT OF APPEALS
SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA ____________________________________________________________
ALVIN PETER HENRY, JR., Appellant
V.
THE STATE OF TEXAS, Appellee ____________________________________________________________
ON APPEAL FROM THE 6TH JUDICIAL DISTRICT COURT LAMAR COUNTY, TEXAS TRIAL COURT NO. 25589; HONORABLE BILL HARRIS, JUDGE ____________________________________________________________
APPELLEE’S (STATE’S) BRIEF ____________________________________________________________
TO THE HONORABLE SIXTH COURT OF APPEALS AT TEXARKANA:
COMES NOW, the State of Texas, by and through the elected County
and District Attorney of Lamar County, Gary D. Young, and the Lamar
County and District Attorney’s Office, respectfully submits its Appellee’s
(State’s) Brief under Rule 38.2 of the Texas Rules of Appellate Procedure.
Unless otherwise indicated, Alvin Peter Henry, Jr. will be referred to
-1- as “the appellant” or “Henry” and the State of Texas as “the State.”
STATEMENT OF FACTS
Factual Background: Christmas Eve, December 24, 2013.
On December 24, 2013 (RR, Vol. 4, pg. 17), Jeremy Massey, a peace
officer and sergeant with the Reno Police Department, (Sergeant Massey)
was working the day shift on Christmas eve from 8:00 to 5:00. See RR, Vol.
4, pgs. 15, 18, 34. Sergeant Massey received a call from the Lamar County
Sheriff’s Department that the Paris Police Department was investigating a
shoplifter. See RR, Vol. 4, pgs. 17, 19, 35. The shoplifter had found the
employees and left the scene eastbound on Highway 82 towards Reno in a
maroon Ford passenger car. See RR, Vol. 4, pg. 19. Reno, Texas was in
Lamar County. See RR, Vol. 4, pg. 19.
After getting the information from the Paris Police Department,
Sergeant Massey left the office on Blackburn Street, turned from Blackburn
onto Highway 82 westbound, and immediately saw the car. See RR, Vol. 4,
pg. 19. Sergeant Massey turned around (RR, Vol. 4, pg. 23; State’s Exhibit
1), and tried to stop the car; but the car did not stop. See RR, Vol. 4, pg. 20.
Pursuit began eastbound towards Clarksville. See RR, Vol. 4, pg. 21.
Sergeant Massey was “already going 106” and the vehicle was making no
-2- effort to pull over. See RR, Vol. 4, pg. 23. The highest speed reached
“around 120, 120-ish.” See RR, Vol. 4, pg. 21.
At that time, Sergeant Massey was trying to lawfully detain or arrest
the driver. See RR, Vol. 4, pgs. 24, 33. The pursuit came into downtown
Blossom, where the speed limit was 45 and Sergeant Massey was going 40
miles over the limit. See RR, Vol. 4, pg. 24. See also State’s Exhibit 1. The
car began driving on the wrong side of the road, and cars were having to get
over on the shoulder. See RR, Vol. 4, pg. 25.
The pursuit went into Red River County. See RR, Vol. 4, pg. 26. In
Detroit, the car ran a red light and speed was up to 113 miles an hour. See
RR, Vol. 4, pg. 26. In Detroit or Clarksville, dispatch advised Sergeant
Massey over the radio that Henry was driving the car. See RR, Vol. 4, pg.
33.
Earlier, Sergeant Massey had a dispatcher radio ahead for assistance,
and a state trooper deployed tire spikes. See RR, Vol. 4, pgs. 21-22; State’s
Exhibit 1. State Trooper Matt Kuhlengel (Trooper Kuhlengel) had “set up
the spikes right there on the opposite side of the bridge.” See RR, Vol. 4, pg.
26; State’s Exhibit 1. When Trooper Kuhlengel started pulling the spikes
across the road, the car evaded to the other lane to try to avoid his tires being
-3- spiked. See RR, Vol. 4, pg. 27.
The car lost a tire. See RR, Vol. 4, pg. 21. See also RR, Vol. 4, pg.
27 (“Yeah, the tire just came off”); State’s Exhibit 1. But, the car continued
at a high rate of speed on a rim. See RR, Vol. 4, pg. 22. The wheel of the
car was cutting into the road because there was no tire. See RR, Vol. 4, pg.
27.
Arrival of Law Enforcement from Red River County.
As the pursuit continued through a residential area in Clarksville (RR,
Vol. 4, pgs. 27-28), Chief Deputy Quinton Wallace (Chief Deputy Wallace),
who worked for the Red River County Sheriff’s Office (RR, Vol. 4, pg. 40),
was the second car. See RR, Vol. 4, pg. 41. Chief Deputy Wallace passed
Sergeant Massey and pulled in behind the evading car. See RR, Vol. 4, pg.
28. Chief Deputy Wallace made contact with Henry a/k/a “Petey.” See RR,
Vol. 4, pg. 41. Eventually, the car stopped in Clarksville, a distance of about
25 or 30 miles from Reno (RR, Vol. 4, pg. 20), at a residence. See RR, Vol.
4, pg. 28.
Sergeant Massey and Chief Deputy Wallace drew weapons, as they
approached the vehicle. See RR, Vol. 4, pgs. 29, 42. The driver, a large
man, was mad and yelling. See RR, Vol. 4, pgs. 29, 37. However, there was
-4- no physical fighting. See RR, Vol. 4, pg. 37. Henry’s demeanor changed
when Chief Deputy Wallace stepped in first. See RR, Vol. 4, pg. 44.
In the car, Sergeant Massey found some steaks from Kroger’s and
Wal-Mart with no receipt. See RR, Vol. 4, pgs. 30, 31-32; State’s Exhibit 2.
Later, Sergeant Massey obtained information that when he had shoplifted
and the employees caught him, he threw one of the employees against the
wall to get away. See RR, Vol. 4, pg. 38. Chief Deputy Wallace took Henry
to the Red River County Sheriff’s Department. See RR, Vol. 4, pg. 43.
Grand Jury Indictment, Later Amended by the State.
On January 21, 2014, a grand jury in Lamar County returned an
original indictment that charged Henry with the felony offense of evading
arrest/detention with motor vehicle. See CR, pg. 5. The indictment further
alleged a deadly weapon,1 as follows:
And it is further presented to said court that a deadly weapon, to-wit: a motor vehicle, that in the manner of its use or intended use was capable of causing death or serious bodily injury, was used or exhibited during the commission of the felony offense or offenses set out above.
See CR, pg. 5. The District Clerk assigned cause number 25589.
1 At the time of trial, Sergeant Massey testified that a car driven at least 40 miles over the speed limit in Blossom was capable of causing death or serious bodily injury. See RR, Vol. 4, pgs. 24-25. Chief Deputy Wallace testified in a similar manner. See RR, Vol. 4, pg. 43.
-5- Subsequently, the State filed a motion to amend the indictment (CR,
pgs. 47-48), which the trial court granted by a signed order. See CR, pg. 54.
The amended indictment changed the name of the peace officer from
“Steven Hill” to “Jeremy Massey.” See CR, pg. 55.
On May 14, 2014, Dr. David Bell, a licensed psychologist in the State
of Texas, (Dr. Bell) came to talk to Henry at the Lamar County jail. See RR,
Vol. 4, pgs. 72-73. Dr. Bell spent “probably 30 to 45 minutes.” See RR,
Vol. 4, pg. 87. Dr. Bell believed that Henry was mentally retarded. See RR,
Vol. 4, pgs. 74, 87. Dr. Bell found Henry to be competent (RR, Vol. 4, pg.
85), and sane. See RR, Vol. 4, pg. 86.
Pre-Trial Proceedings and Jury Trial.
On June 6, 2014, the State filed its first amended notice of intent to
seek enhanced sentence as a habitual offender. See CR, pgs. 45-46.
On June 26, 2014, the trial court conducted a hearing “to address the
issue of a potential jury instruction and evidence before the jury at
guilt/innocence regarding the Defendant’s illness--mental illness and mental
retardation.” See RR, Vol. 2, pg. 4.
On June 30, 2014, the trial court presided over the voir dire
proceedings. See RR, Vol. 3, pg. 5. On the following day, the jury trial
-6- commenced on July 1, 2014. See RR, Vol. 4, pg. 6. As witnesses, the State
called Sergeant Massey and Chief Deputy; and after their testimony, the
State rested. See RR, Vol. 4, pg. 44. Through defense counsel, Henry
rested. See RR, Vol. 4, pg. 48. Both parties then rested and closed. See RR,
Vol. 4, pg. 48.
The trial court then read its charge to the jury. See RR, Vol. 4, pgs.
48-57; CR, pgs. 70-76. Following brief closing arguments (RR, Vol. 4, pgs.
57-58), the jury retired to begin its deliberations (RR, Vol. 4, pg. 58), and
later reached a verdict. See CR, pg. 77. By its verdict, the jury found Henry
guilty of the offense of evading arrest or detention with a motor vehicle, as
charged in the indictment. See RR, Vol. 4, pg. 60; CR, pg. 75. On the
special issue, the jury further found from the evidence beyond a reasonable
doubt that Henry did use or exhibit a deadly weapon during the commission
of the alleged offense, to-wit, a motor vehicle, that in the manner of its use
or intended use was capable of causing serious bodily injury or death. See
RR, Vol. 4, pg. 61; CR, pg. 76.
Punishment Phase.
At the beginning of the punishment phase, the State needed to get a
plea on the enhancement paragraphs (RR, Vol. 4, pg. 62), which were
-7- subsequently read and Henry entered his pleas of “not true.” See RR, Vol. 4,
pgs. 63-64. The trial court then entered pleas of “not true” on those
allegations. See RR, Vol. 4, pg. 64.
After opening statements (RR, Vol. 4, pgs. 64-66), the State offered
exhibits 3 through 15 into evidence. See RR, Vol. 4, pgs. 66-67. The trial
court asked for “any objection” and defense counsel stated in open court,
“No, sir.” See RR, Vol. 4, pg. 67. The exhibits were admitted. See RR,
Vol. 4, pg. 67. The State published these exhibits to the jury, and rested.
See RR, Vol. 4, pgs. 69-70.
After presenting his case during the punishment phase, Henry rested.
See RR, Vol. 4, pg. 121. The State had no rebuttal. See RR, Vol. 4, pg. 121.
Both sides then rested and closed. See RR, Vol. 4, pg. 121.
Following a recess, the trial court read its punishment charge to the
jury. See RR, Vol. 4, pgs. 124-134; CR, pgs. 78-86. After closing
arguments (RR, Vol. 4, pgs. 135-140), the jury retired to begin its
deliberations. See RR, Vol. 4, pg. 140. Through defense counsel, Henry
indicated he wanted to appeal. See RR, Vol. 4, pg. 141.
Subsequently, the jury reached a verdict. See RR, Vol. 4, pg. 143;
CR, pg. 89. By its verdict, the jury assessed punishment at confinement for
-8- sixty (60) years in the Texas Department of Criminal Justice, Institutional
Division. See RR, Vol. 4, pg. 144; CR, pg. 83. The trial court then
discharged the jury and pronounced sentence. See RR, Vol. 4, pgs. 145-146.
On July 1, 2014, the trial court signed a final judgment of conviction
by jury. See CR, pgs. 93-94. On the same day, Henry signed a handwritten
notice of appeal. See CR, pg. 92. The trial court also signed its certification
of the defendant’s right of appeal. See CR, pg. 91. On July 15, 2014, the
trial court signed an order appointing appellate counsel to represent Henry.
See CR, pg. 97.
Proceedings in this Court of Appeals.
On or about July 15, 2014, Henry filed his notice of appeal in this
Court. The District Clerk of Lamar County submitted the Clerk’s Record,
which this Court filed on or about August 15, 2014. After this Court granted
an extension of time, the official court reporter filed the Reporter’s Record
on or about October 2, 2014. The court reporter filed the exhibits on or
about October 6th.
After this Court granted an extension of time, Henry submitted his
brief, which this Court received on or about December 5, 2014. On January
5, 2015, the State filed a motion for extension of time to file its brief, which
-9- this Court granted until February 4, 2015.
The State filed, or will be filing, its brief on or before the February 4th
extended deadline.
SUMMARY OF ARGUMENT
Henry’s four (4) issues/points of error should be overruled, and the
trial court’s final judgment of conviction should be affirmed for the
following reasons: First and secondly, the State adduced legally-sufficient
evidence for the jury, as the rational trier of fact, to find beyond a reasonable
doubt that Henry was “one and the same person” in (a) the previous felony
convictions used for enhancement and (b) the previous convictions used as
extraneous offenses.
Third, the trial court did not abuse its discretion in excluding evidence
of Henry’s “diminished capacity” during the guilt-innocence stage of his
jury trial. There is no “diminished capacity” defense in Texas.
Finally, the trial court did not abuse its discretion in denying Henry’s
proposed jury instruction (Defendant’s Exhibit 3) during the guilt-innocence
state of his jury trial because, again, there is no “diminished capacity”
defense in Texas. No error was shown, and no harm resulted. Accordingly,
the trial court’s final judgment of conviction should be affirmed.
-10- ARGUMENT AND AUTHORITIES
ISSUES PRESENTED IN REPLY NOS. 1 & 2: THE EVIDENCE WAS LEGALLY SUFFICIENT FOR A RATIONAL JURY TO FIND BEYOND A REASONABLE DOUBT THAT THE APPELLANT, HENRY, WAS “ONE AND THE SAME” PERSON LINKED TO THE PRIOR CONVICTIONS.
A. Standard of Review: Sufficiency of the Evidence.
In evaluating legal sufficiency, this Court reviews all the evidence in
the light most favorable to the trial court's judgment to determine whether
any rational jury could have found the essential elements of the offense
beyond a reasonable doubt. See, e.g., Smith v. State, 401 S.W.3d 915, 920
(Tex. App.--Texarkana 2013, pet. ref’d) (Morriss, C.J.) (citing Brooks v.
State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Jackson v. Virginia,
443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)); Hartsfield v.
State, 305 S.W.3d 859, 863 (Tex. App.--Texarkana 2010, pet. ref’d). This
Court examines legal sufficiency under the direction of the Brooks opinion,
while giving deference to the responsibility of the jury “to fairly resolve
conflicts in testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.” See Smith, 401 S.W.3d at 920
(citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Jackson,
443 U.S. at 318-19; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim App.
-11- 2007)).
B. Law: Proof of Prior Convictions.
To establish that a defendant has been convicted of a prior offense, the
State must prove beyond a reasonable doubt that (1) a prior conviction
exists, and (2) the defendant is linked to that conviction. See Flowers v.
State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007); Smith, 401 S.W.3d at
920. The Flowers court noted that Texas law does not require “that the fact
of a prior conviction be proven in a specific manner,” and “any type of
evidence, documentary or testimonial, may suffice.” See Smith, 401 S.W.3d
at 920 (citing Flowers, 220 S.W.3d at 921); Cooper v. State, 363 S.W.3d
293, 296 (Tex. App.--Texarkana 2012, pet. ref’d) (no specific form of
evidence is required to prove that the prior conviction exists, the defendant is
linked to it, and the conviction is final). In its decision in Flowers, the Texas
Court of Criminal Appeals likened the process of proving up a prior
conviction to evidentiary pieces to a jigsaw puzzle and left the ultimate
decision of whether these “pieces fit together sufficiently to complete the
puzzle” with the trier of fact under the totality of the evidence. See id (citing
Flowers, 220 S.W.3d at 923).
Whether the State met its burden of linking the conviction to the
-12- defendant was a matter of conditional relevancy. See, e.g., Davis v.
State, 268 S.W.3d 683, 715 (Tex. App.--Fort Worth 2008, pet. ref’d) (citing
Smith v. State, 998 S.W.2d 683, 687 (Tex. App.--Corpus Christi 1999, pet.
ref’d); Wright v. State, 932 S.W.2d 572, 576 (Tex. App.--Tyler 1995, no
pet.); Rosales v. State, 867 S.W.2d 70, 72 (Tex. App.--El Paso 1993, no
pet.)). “That is, the relevance of a prior conviction is conditioned upon the
production of evidence sufficient to show that the defendant[] [is] one and
the same.” See Davis, 268 S.W.3d at 715.
If, after all proof on the fact in question has been received, and the
evidence does not, in the aggregate, support a rational finding that the
defendant is the same person as the one previously convicted, then the fact-
finder should not be allowed to consider the evidence of the conviction. See
Davis, 268 S.W.3d at 716. In the case of evidentiary facts, it means that a
motion to strike should be granted to withdraw the evidence from
consideration. See id (citing Fuller v. State, 829 S.W.2d 191, 197 (Tex.
Crim. App. 1992), overruled on other grounds, Castillo v. State, 913 S.W.2d
529, 337 (Tex. Crim. App. 1995); Smith, 998 S.W.2d at 688)).
If such evidence is lacking but the court nevertheless admits the
prior conviction, the defendant must object. See Howard v. State, 896
-13- S.W.2d 401, 406 (Tex. App.--Amarillo 1995, pet. ref’d) (citing Rosales, 867
S.W.2d at 73 (holding that a motion to strike should be granted thereby
withdrawing the evidence from consideration); Ex parte Russell, 738 S.W.2d
644, 647 (Tex. Crim. App. 1986) (holding that one who wishes to complain
on appeal about the use of prior convictions admitted as evidence during the
punishment phase must make a timely objection); Logan v. State, 482
S.W.2d 229, 232 (Tex. Crim. App. 1972) (holding that in absence of an
objection, any error is waived)).
C. Waiver of Error: No Motion to Strike; No Objection.
1. No Motion to Strike.
Here, when the State offered Henry’s prior convictions (exhibits 3
through 15) into evidence, the trial court asked for “any objection” and
defense counsel stated in open court, “No, sir.” See RR, Vol. 4, pg. 67.
The trial court admitted the exhibits. See RR, Vol. 4, pg. 67. When the
State rested (RR, Vol. 4, pg. 70), Henry did not file any motion to strike in
order to withdraw the evidentiary exhibits from consideration. See Fuller,
829 S.W.2d at 197; Davis, 268 S.W.3d at 716; Smith, 998 S.W.2d at 688.
By failing to file any motion to strike, Henry waived error, if any, and did
not preserve his appellate complaint. See id; Tex. R. App. P. 33.1(a).
-14- Therefore, Henry’s first and second issues should be overruled.
2. No Objection.
Again, when the State offered Henry’s prior convictions (exhibits 3
through 15) into evidence, the trial court asked for “any objection” and
defense counsel stated in open court, “No, sir.” See RR, Vol. 4, pg. 67.
Under these circumstances, this Court must conclude that any objection was
waived. See Howard, 896 S.W.2d at 406 (and cited cases); Tex. R. App. P.
33.1(a). For this second reason, Henry’s first and second issues should be
overruled because he failed to preserve error, if any. See id.
D. Any Type of Evidence, Documentary or Testimonial, May Suffice, and Was Legally-Sufficient in the Present Case.
Even assuming error preservation, Texas law did not require “that the
fact of a prior conviction be proven in a specific manner,” and “any type of
evidence, documentary or testimonial, may suffice.” See Smith, 401 S.W.3d
at 920 (citing Flowers, 220 S.W.3d at 921); Cooper, 363 S.W.3d at 296. A
sufficient nexus between the defendant and a prior conviction may be shown
through circumstantial evidence. See Human v. State, 749 S.W.2d 832, 839
(Tex. Crim. App. 1988). One of the nonexclusive means of proving identity
for purposes of enhancement was by testimony of a witness who identified
the accused as the same person previously convicted. See Littles v. State,
-15- 726 S.W.2d 26, 31 (Tex. Crim. App. 1987) (italics added in the opinion).
As applied here, the appellant, Henry, testified during cross-
examination to the following:
Q. Well, you’ve been to prison for aggravated assault, haven’t you?
A. Yes.
Q. You’ve been to prison for aggravated robbery, haven’t you?
A. Yeah.
Q. You been to prison for theft, right?
A. Right.
Q. You’ve been to prison for possession of a prohibited weapon, right? Is that that right?
A. I don’t know about that.
Q. Been to prison for burglary of a building --
A. (Indicates.)
Q. -- right?
A. Yeah.
Q. Been -- on two different burglary of a buildings. You’ve been two different times for burglary of a building, right? You’ve been to prison for aggravated robbery, right?
A. (Indicates.)
-16- See RR, Vol. 4, pgs. 109-110.
In addition to the testimony from Henry, Dr. Bell testified during
cross-examination to the following:
Q. -- right? But he’s been to prison for aggravated assault twice --
A. Yes.
Q. -- and for aggravated robbery once, and for three different family violence assaults or four assaults in the -- in the past year or two. He is a violent person, right?
A. He has a history of violence, yes.
See RR, Vol. 4, pg. 83. Finally, Dr. Bell testified before the jury that:
Q. He don’t want to go back to prison?
A. No.
Q. All right. And that’s one of the reasons he ran?
A. Yes.
See RR, Vol. 4, pg. 89.
In addition to the testimony from Henry and Dr. Bell, Dewayne
Coleman, who owned Coleman’s Barbecue in Clarksville (RR, Vol. 4, pg.
113), testified during cross-examination to the following:
Q. Mr. Coleman, you know that Mr. Henry went to prison in 1989 for aggravated assault, right?
-17- A. Right.
Q. And then he went to prison in 2002 for aggravated robbery, right?
A. Okay.
Q. And the first time he went to prison was ‘78 from what I could find. That’s been 36 years. Fair to say he’s spent more time in prison than out of prison?
A. Yes.
Q. The vast majority of his -- of those 36 years he’s spent in prison, right?
A. Right.
See RR, Vol. 4, pgs. 119-120.
1. Legally-Sufficient Evidence Proved That Henry Was “One and the Same” Person, Who Had Been Convicted in Two (2) Prior Offenses for Enhancement of Punishment.
In the present case, the State filed its first amended notice of intent to
seek enhanced sentence as a habitual offender. See CR, pgs. 45-46. In that
notice, the State identified two (2) prior felony convictions from Red River
County, Texas with dates of final adjudication in 1989 and 2002. See CR,
pg, 45. See also RR, Vol. 4, pgs. 63-64.
a. Prior Felony Conviction for Aggravated Assault in 1989.
From the testimony of three separate witnesses above, including the
-18- testimony regarding prison from Henry himself, the jury could fairly resolve
conflicts in the testimony and weigh that evidence. See, e.g., Smith, 401
S.W.3d at 920 (and cited cases) (deference given to the responsibility of the
jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts.”). From the
three pieces of testimonial evidence that Henry went to prison in 1989 for
aggravated assault (RR, Vol. 4, pgs. 83, 109 and 119) plus the separate piece
of evidence in State’s Exhibit 9, the jury could have drawn the reasonable
inference, see id, or fit the pieces together sufficiently, that (1) there was a
previous conviction for aggravated assault in 1989, and that (2) Henry was
“one and the same person” convicted in 1989 for aggravated assault. See
Flowers, 220 S.W.3d at 923 [the trier of fact looks at the totality of the
evidence admitted to determine 1) whether there was a previous conviction,
and 2) whether the defendant was the person convicted.]. See also Smith,
401 S.W.3d at 920 (deference given to the responsibility of the jury “to draw
reasonable inferences from basic facts to ultimate facts.”).
From the totality of the evidence (testimony from three separate
witnesses + State’s Exhibit 9), the jury could have found these two elements
beyond a reasonable doubt. See Flowers, 220 S.W.3d at 923. Because these
-19- two elements could be found beyond a reasonable doubt, the various pieces
to complete the puzzle were necessarily legally sufficient to prove a prior
conviction. See id. Thus, Henry’s legal-sufficiency challenge should fail as
to the 1989 prior felony conviction.
b. Prior Felony Conviction for Aggravated Robbery in 2002.
Just as equally, the State adduced three pieces of testimonial evidence
that Henry went to prison in 2002 for aggravated robbery (RR, Vol. 4, pgs.
83, 110 and 119) along with the separate piece of evidence in State’s Exhibit
10. Compare RR, Vol. 4, pgs. 83, 110 and 119 with State’s Exhibit 10.
Again, from this evidence, the jury could have drawn the reasonable
inference, or fit the pieces together sufficiently, that (1) there was a previous
conviction for aggravated assault in 2002, and that (2) Henry was “one and
the same person” convicted in 2002 for aggravated robbery. See Flowers,
220 S.W.3d at 923 [the trier of fact looks at the totality of the evidence
admitted to determine 1) whether there was a previous conviction, and 2)
whether the defendant was the person convicted.]. See also Smith, 401
S.W.3d at 920.
From the totality of the evidence (testimony from three separate
witnesses + State’s Exhibit 10), the jury could have found these two
-20- elements beyond a reasonable doubt. See Flowers, 220 S.W.3d at 923.
Because these two elements could be found beyond a reasonable doubt, the
various pieces to complete the puzzle were necessarily legally sufficient to
prove a prior conviction. See id. As with the 1989 prior felony conviction,
Henry’s legal-sufficiency challenge should also fail as to the 2002 prior
felony conviction. In conclusion, Henry’s first issue/point of error should be
overruled.
2. Legally-Sufficient Evidence Proved That Henry Was “One and the Same” Person, Who Had Been Convicted in Prior Offenses for Extraneous Offenses.
As with the prior felony convictions in 1989 and 2002, Henry testified
that he had been to prison for theft. See RR, Vol. 4, pg. 110. When asked
by the prosecutor, “You’ve been to prison for possession of a prohibited
weapon, right?,” Henry stated, “I don’t know about that.” See RR, Vol. 4,
pg. 110. But, the jury could fairly resolve conflicts in testimony, weigh the
evidence, and draw reasonable inferences from basic facts to ultimate facts.”
See Smith, 401 S.W.3d at 920. The jury could have disbelieved Henry’s
testimony as to the extraneous offense of possession of a prohibited weapon,
and found to the contrary. See id. Finally, Henry testified that “yeah,” he’s
been to prison for burglary of a building and “two different times for
-21- burglary of a building.” See RR, Vol. 4, pg. 110.
Dr. Bell testified that Henry has “a history of violence, yes.” See RR,
Vol. 4, pg. 83. Dr. Bell also testified that Henry did not want to go back to
prison, and that’s one of the reasons he ran. See RR, Vol. 4, pg. 89. When
asked by the prosecutor, Coleman agreed with an affirmative “yes” that
Henry went to prison in ’78, and that he’s spent more time in prison than out
of prison, the vast majority of his 36 years. See RR, Vol. 4, pgs. 119-120.
From the totality of the evidence (testimony from three separate
witnesses plus the other exhibits excluding State’s Exhibits 9 and 10), the
jury could have drawn the reasonable inference, or fit the pieces together
sufficiently, that (1) Henry had been previously convicted for other
extraneous offenses, and that (2) Henry was “one and the same person”
convicted in those extraneous offenses. See Flowers, 220 S.W.3d at 923;
Smith, 401 S.W.3d at 920. Thus, Henry’s legal-sufficiency challenge should
fail as to the other extraneous-offense-convictions, and his second
issue/point of error on appeal should be overruled.
-22- ISSUE PRESENTED IN REPLY NO. 3: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN EXCLUDING THE APPELLANT’S EVIDENCE OF HIS “DIMINISHED CAPACITY” DURING THE GUILT-INNOCENCE PHASE OF THE TRIAL.
A. Standard of Review: Abuse of Discretion.
This Court reviews a trial court’s ruling to admit or exclude
evidence under an abuse of discretion standard. See Mays v. State, 223
S.W.3d 651, 653 (Tex. App.--Texarkana 2007), rev’d, 318 S.W.3d 368 (Tex.
Crim. App. 2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1606; 179 L. Ed. 2d
506 (2011). A trial court abuses its discretion if it acts without reference to
guiding principles or rules. See Chiles v. State, 57 S.W.3d 512, 518 (Tex.
App.--Waco 2001, no pet.) (citing Lyles v. State, 850 S.W.2d 497, 502 (Tex.
Crim. App. 1993).
If the court’s decision falls outside the “zone of reasonable
disagreement,” it has abused its discretion. See Mays, 223 S.W.3d at 654
(citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990)
(op. on reh’g)). As long as the trial court’s ruling falls within the zone of
reasonable disagreement, this Court will affirm its decision. See Mays, 223
S.W.3d at 654 (citing Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App.
2003)).
B. Law: No “Diminished Capacity” Defense in Texas.
-23- There is no “diminished capacity” defense in Texas. See Mays, 318
S.W.3d at 381 (citing Ruffin v. State, 270 S.W.3d 586, 593, 596 (Tex. Crim.
App. 2008); Jackson v. State, 160 S.W.3d 568, 573 (Tex. Crim. App. 2005)).
“Texas does not recognize diminished capacity as an affirmative
defense, i.e., a lesser form of the defense of insanity.” See Hart v. State, 314
S.W.3d 37, 40 n. 1 (Tex. App.--Texarkana 2010, no pet.); Rhoten v. State,
299 S.W.3d 349, 355 n. 8 (Tex. App.--Texarkana 2009, no pet.).
The general rule that proof that an accused suffers from a mental
weakness or emotional disturbance, short of the inability to distinguish right
from wrong, is not admissible at the guilt-innocence stage of trial. See
Jackson v. State, 115 S.W.3d 326, 328 (Tex. App.--Dallas 2003), aff’d, 160
S.W.3d 568 (Tex. Crim. App. 2005); Chiles, 57 S.W.3d at 519 n. 3 (citing
Cowles v. State, 510 S.W.2d 608, 609 (Tex. Crim. App. 1974). In addition
to this general rule, the Texas Court of Criminal Appeals held in Wagner v.
State, 687 S.W.2d 303 (Tex. Crim. App. 1984), as follows:
Lack of normal impulse control is simply not a circumstance recognized by the Legislature to diminish the criminal responsibility of an accused or reduce his crime to a lesser included offense.
We therefore find that, the issue of appellant’s sanity having been taken out of the case, appellant’s proffered evidence was
-24- not material on the issue of his guilt, and its introduction at the guilt phase at trial would only have confused the jury -- the very evil sought to be averted in Cowles v. State, supra. The trial court did not err in refusing to admit this evidence and the panel was correct in overruling appellant’s contention in this regard on original submission.
See id. at 312.
In Jackson, the court of appeals held, prior to being affirmed by the
Texas Court of Criminal Appeals, that “[t]he Wagner court declined to
accept appellant’s argument that evidence of his mental impairment was
admissible at the guilt-innocence phase of trial.” See Jackson, 115 S.W.3d
at 328 (citing Wagner, 687 S.W.2d at 311-12). In short, the court held that a
defendant’s “lack of normal impulse control is simply not a circumstance
recognized by the Legislature to diminish the criminal responsibility of an
accused or reduce his crime to a lesser included offense.” See Jackson, 115
S.W.3d at 328 (citing Wagner, 687 S.W.2d at 312).
In Darnes v. State, 118 S.W.3d 916 (Tex. App.--Amarillo 2003, pet.
ref’d), which was decided soon after Jackson, the appellant’s first two issues
involved the exclusion of evidence during the guilt-innocence phase of the
trial relating to a mental condition of which he allegedly suffered
(“intermittent explosive disorder”). See id. at 918. According to the
appellant in Darnes, the evidence was relevant even though he was not
-25- claiming insanity. See id. This was supposedly so in Darnes because it
negated the mens rea averred by the State in the indictment. See id (italics
added in the opinion).
In Darnes, the court of appeals overruled the appellant’s argument for
three reasons; the first of which reasoned that:
First, the argument that evidence regarding one’s mental condition may be used to negate the mens rea involved in a specific intent crime was rejected in Wagner v. State, 687 S.W.2d 303 (Tex. Crim. App. 1984). As stated by the Texas Court of Criminal Appeals in that opinion, “the issue of appellant’s sanity having been taken out of the case, appellant’s proffered evidence was not material on the issue of his guilt, and its introduction at the guilt phase . . . would only have confused the jury . . . .” Id. at 312; accord Warner v. State, 944 S.W.2d 812, 815-16 (Tex. App.--Austin 1997, pet. dism’d)2 (also holding the evidence in admissible).
See Darnes, 118 S.W.3d at 919.
C. Application of Law to the Present Case.
In applying the Wagner rationale here, like in Darnes and Jackson,
any evidence of Henry’s mental impairment was not admissible at the guilt-
innocence phase of trial. See Jackson, 115 S.W.3d at 328 (citing Wagner,
687 S.W.2d at 311-12). Here, Henry’s lack of normal impulse control was
simply not a circumstance recognized by the Legislature to diminish the
criminal responsibility of an accused or reduce his crime to a lesser included 2 969 S.W.2d 1 (Tex. Crim. App. 1998) (per curiam).
-26- offense. See Jackson, 115 S.W.3d at 328 (citing Wagner, 687 S.W.2d at
312).
As in Darnes, any proffered evidence by Henry was not material on
the issue of his guilt, and its introduction at the guilt phase would only have
confused the jury. See Darnes, 118 S.W.3d at 919 (citing Wagner, 687
S.W.2d at 312; Warner, 944 S.W.2d at 815-16). Here, that was precisely the
concern of the trial court in the present case: “I hear what Mr. Young says
about mental illness in guilt / innocence, but I’d have some concerns as to
whether that would confuse the jury. I’ve got some concerns --[.]” See RR,
Vol. 2, pg. 12.
In conclusion, the trial court’s June 26th ruling was consistent with the
binding case law addressing diminished capacity, and was not an abuse of
discretion. See Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex. Crim.
App. 1990) (op. on reh’g) (stating that appellate court reviews trial court’s
decision to admit or exclude evidence for an abuse of discretion). Therefore,
Henry’s third issue on appeal should be overruled.
-27- ISSUE PRESENTED IN REPLY NO. 4: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE APPELLANT’S REQUESTED JURY INSTRUCTION ON “DIMINISHED CAPACITY.”
A. Standard of Review: A Two-Step Process.
A review of alleged jury charge error involves a two-step process.
See, e.g., Wilson v. State, 391 S.W.3d 131, 138 (Tex. App.--Texarkana 2012,
no pet.) (citing Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App.
1994; Sakil v. State, 287 S.W.3d 23, 25-26 (Tex. Crim. App. 2009)).
Initially, this Court should determine whether an error occurred, and then
evaluate whether sufficient harm resulted from the error to require reversal.
See Wilson, 391 S.W.3d at 138 (citing Abdnor, 871 S.W.2d at 731-32).
B. The Appellant, Henry, Was Not Entitled to any Jury Instruction.
With his final issue, Henry contended that “[s]ince it was error not to
allow the testimony at the Guilt/Innocence phase, it was error not to give a
requested jury charge on diminished capacity . . .” See Appellant’s Brief,
pgs. 29-30. In his brief, Henry cited to Texas Pattern Criminal Jury Charges,
Defense, 201, Chapter 8, Section B 8.4 pp. 113-114. See Appellant’s Brief,
pg. 30. See also Defendant’s Exhibit 3.
In Mays, however, the Texas Court of Criminal Appeals reasoned the
-28- following:
In sum, the trial judge was not required to admit any expert testimony concerning appellant’s mental illness during the guilt stage because it did not directly rebut his culpable mens rea.[] Thus, appellant was not entitled to any jury instruction concerning that evidence. But having requested such an instruction, appellant has not shown that he suffered any harm when the trial judge gave the jury a legally correct, if unnecessary, instruction concerning the use of that evidence.
See Mays, 318 S.W.3d at 382 (footnote omitted) (bold added for emphasis).
In applying the Mays rationale above to the present case, this Court
should hold that Henry was not entitled to any jury instruction during the
guilt-innocence stage of his trial. See id. In the present case, Henry was not
entitled to his proposed jury instruction in Defendant’s Exhibit 3 because the
trial judge was not required to admit any testimony (from Dr. Bell or
Coleman) concerning appellant’s mental illness during the guilt stage
because it did not directly rebut his culpable mens rea. See id.
Because Henry was not entitled to any jury instruction, even as
proposed in Defendant’s Exhibit 3, no error occurred. See Wilson, 391
S.W.3d at 138 (citing Abdnor, 871 S.W.2d at 731-32). Because no error
occurred, sufficient harm did not result. See id. Therefore, Henry’s final
issue/point of error should be overruled, and the final judgment of
conviction should be affirmed.
-29- PRAYER
WHEREFORE PREMISES CONSIDERED, the State of Texas prays
that upon final submission without oral argument, this Court should affirm
the trial court’s final judgment of conviction, adjudge court costs against the
appellant, and for such other and further relief, both at law and in equity, to
which it may be justly and legally entitled.
Respectfully submitted,
Gary D. Young Lamar County & District Attorney Lamar County Courthouse 119 North Main Paris, Texas 75460 (903) 737-2470 (903) 737-2455 (fax)
By:________________________________ Gary D. Young, County Attorney SBN# 00785298
ATTORNEYS FOR STATE OF TEXAS
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,
the “Appellee’s (State’s) Brief” was a computer-generated document and
contained 7492 words--not including the Appendix, if any. The undersigned
attorney certified that he relied on the word count of the computer program,
-30- which was used to prepare this document.
______________________________ GARY D. YOUNG gyoung@co.lamar.tx.us
CERTIFICATE OF SERVICE
This is to certify that in accordance with Tex. R. App. P. 9.5, a true
copy of the “Appellee’s (State’s) Brief” has been served on the 2ND day of
February, 2015 upon the following:
Gary L. Waite Attorney at Law 104 Lamar Avenue Paris, TX 75460
______________________________ GARY D. YOUNG gyoung@co.lamar.tx.us
-31-