Opinion issued December 20, 2012.
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-11-00681-CR ——————————— DASMIN PIERRE, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court Harris County, Texas Trial Court Case No. 1311399
MEMORANDUM OPINION
A jury found Dasmin Pierre guilty of murder and assessed punishment of
twenty-three years’ imprisonment. On appeal, Pierre contends that: (1) the trial
court’s erred in failing to instruct the jury that it must reach a unanimous verdict because it instructed the jury disjunctively about the two means of committing
murder; and (2) the trial court abused its discretion by admitting Officer R. Abel’s
testimony about Pierre’s attempt upon apprehension to use a fake name in order to
conceal his fugitive status. We conclude that the trial court did not err in
submitting the charge as worded and that Pierre waived his evidentiary complaint.
We therefore affirm.
Background
John Matthews, the decedent, known as a supplier of illicit drugs, had agreed
to sell marijuana to two women. When the women arrived at Matthews’s
apartment, Matthews came out the front door, hurriedly approached their car, and
asked them to drive him to the corner store. They agreed. On the way back to
Matthews’s apartment, one of the women noticed Pierre walking toward the store.
When the car stopped in front of the apartment, Matthews told the women
that he would get the marijuana and return. Before he could leave the back seat,
however, Pierre approached the car. Matthews rolled down the window and he
began to speak to Pierre. Pierre asked Matthews, “Do you have some tabs?”
Matthew responded, “Yeah, I’m rolling now.” This exchange was followed almost
immediately by four gunshots, which Pierre had fired into Matthews’s head, killing
him. The next day, Pierre called one of the women and cautioned her not to say
anything.
2 Several months later, the police learned that Pierre had been arrested in
Louisiana, but they did not apprehend him until approximately two years later.
Acting on a tip received through Crime Stoppers, they located Pierre in a Wal-Mart
near New Orleans. Officer R. Abel detained him and asked Pierre for his name.
Pierre responded “Ben Young.” After running a fingerprint check, the officers
identified the detainee as Pierre, confirmed that he was a wanted suspect, and
returned him to Texas for trial.
The indictment charged that Pierre
Intentionally and knowingly cause[d] the death of JOHN HENRY MATTHEWS, a/k/a ANTONIO JONES by SHOOTING [ot] . . .
intend[ed] to cause serious bodily injury to JOHN HENRY MATTHEWS, a/k/a ANTONIO JONES, . . . and did cause the death of the Complainant by intentionally and knowingly committing an act clearly dangerous to human life.
Discussion
Jury charge
Pierre contends that the trial court committed egregious harm in failing to
require the jury to render a unanimous verdict. We review jury charge error by
considering whether (1) error exists in the charge and (2) if so, whether sufficient
harm resulted from the error to require reversal. Ngo v. State, 175 S.W.3d 738,
744 (Tex. Crim. App. 2005).
3 Jury unanimity is required to obtain a criminal conviction. TEX. CONST. art.
V, § 13; TEX. CODE CRIM. PROC. ANN. art. 36.29(a) (West Supp. 2012); Ngo, 175
S.W.3d at 745. Each and every juror must agree that the defendant committed the
same, single, specific criminal act. Ngo, 175 S.W.3d at 745. Non-unanimity may
result “when the jury charge fails to properly instruct the jury, based on the
indicted offense(s) and specific evidence in the case, that its verdict must be
unanimous.” Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011).
The charge in this case allowed the jury to find Pierre guilty of murder if it
found (1) that Pierre either intentionally or knowingly caused death, or (2) that he
intended to cause substantial risk of life or serious bodily injury, in any of its
forms, and committed an act clearly dangerous to human life. Pierre specifically
complains that this charge violated his right to a unanimous verdict because it
allowed the jury to convict him of murder without reaching a consensus
concerning whether the State had proven beyond a reasonable doubt either one of
the two paragraphs alleged in the indictment.
To meet the jury unanimity requirement, the jury must agree that the
defendant committed one specific crime. Landrian v. State, 268 S.W.3d 532, 535
(Tex. Crim. App. 2008). The jury need not, however, find that the defendant
committed that crime in one specific way or even with one specific act. Id. The
unanimity requirement is not violated when the jury is instructed on alternative
4 theories, or manner and means, of committing the same offense. Martinez v. State,
129 S.W.3d 101, 103 (Tex. Crim. App. 2004). When alternate theories of
committing the same offense are submitted to the jury in the disjunctive, and the
jury is required by the charge to find each element of the offense beyond a
reasonable doubt, it is appropriate for the jury to return a general verdict if the
evidence is sufficient to support a finding under any of the theories submitted. See
Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991).
In reviewing a disjunctive jury charge, we first determine whether the
separate application paragraphs contain different criminal acts or whether they
merely instruct as to different means of committing a single offense. If the
disjunctive paragraphs contain different criminal acts, then the jury must be
instructed that it cannot return a guilty verdict unless it agrees unanimously that the
defendant committed one of the acts. Ngo v. State, 175 S.W.3d at 744. If the
disjunctive paragraphs merely inform of different means of committing a single
offense, then the jury does not have to unanimously agree on which alternative
means the defendant used to commit the offense. Leza v. State, 351 S.W.3d 711,
714 (Tex. Crim. App. 2011); see Young v. State, 341 S.W.3d 417, 422 (Tex. Crim.
App. 2011).
5 In deciding whether the paragraphs allege the commission of separate
criminal acts or separate means of committing one act, “[a] handy, though not
definitive, rule of thumb is to look to the statutory verb defining the criminal act.”
Ngo, 175 S.W.3d at 745 n.24. Under section 19.02 of the Texas Penal Code, a
person commits the offense of 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 ANN. § 19.02(b)(1)-(2) (West 2003). A plain reading of this
statute reveals that the subsections (1) and (2) differ in their descriptions of the
mental state required for culpability in causing death or serious bodily injury.
Compare TEX. PENAL CODE ANN.
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Opinion issued December 20, 2012.
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-11-00681-CR ——————————— DASMIN PIERRE, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court Harris County, Texas Trial Court Case No. 1311399
MEMORANDUM OPINION
A jury found Dasmin Pierre guilty of murder and assessed punishment of
twenty-three years’ imprisonment. On appeal, Pierre contends that: (1) the trial
court’s erred in failing to instruct the jury that it must reach a unanimous verdict because it instructed the jury disjunctively about the two means of committing
murder; and (2) the trial court abused its discretion by admitting Officer R. Abel’s
testimony about Pierre’s attempt upon apprehension to use a fake name in order to
conceal his fugitive status. We conclude that the trial court did not err in
submitting the charge as worded and that Pierre waived his evidentiary complaint.
We therefore affirm.
Background
John Matthews, the decedent, known as a supplier of illicit drugs, had agreed
to sell marijuana to two women. When the women arrived at Matthews’s
apartment, Matthews came out the front door, hurriedly approached their car, and
asked them to drive him to the corner store. They agreed. On the way back to
Matthews’s apartment, one of the women noticed Pierre walking toward the store.
When the car stopped in front of the apartment, Matthews told the women
that he would get the marijuana and return. Before he could leave the back seat,
however, Pierre approached the car. Matthews rolled down the window and he
began to speak to Pierre. Pierre asked Matthews, “Do you have some tabs?”
Matthew responded, “Yeah, I’m rolling now.” This exchange was followed almost
immediately by four gunshots, which Pierre had fired into Matthews’s head, killing
him. The next day, Pierre called one of the women and cautioned her not to say
anything.
2 Several months later, the police learned that Pierre had been arrested in
Louisiana, but they did not apprehend him until approximately two years later.
Acting on a tip received through Crime Stoppers, they located Pierre in a Wal-Mart
near New Orleans. Officer R. Abel detained him and asked Pierre for his name.
Pierre responded “Ben Young.” After running a fingerprint check, the officers
identified the detainee as Pierre, confirmed that he was a wanted suspect, and
returned him to Texas for trial.
The indictment charged that Pierre
Intentionally and knowingly cause[d] the death of JOHN HENRY MATTHEWS, a/k/a ANTONIO JONES by SHOOTING [ot] . . .
intend[ed] to cause serious bodily injury to JOHN HENRY MATTHEWS, a/k/a ANTONIO JONES, . . . and did cause the death of the Complainant by intentionally and knowingly committing an act clearly dangerous to human life.
Discussion
Jury charge
Pierre contends that the trial court committed egregious harm in failing to
require the jury to render a unanimous verdict. We review jury charge error by
considering whether (1) error exists in the charge and (2) if so, whether sufficient
harm resulted from the error to require reversal. Ngo v. State, 175 S.W.3d 738,
744 (Tex. Crim. App. 2005).
3 Jury unanimity is required to obtain a criminal conviction. TEX. CONST. art.
V, § 13; TEX. CODE CRIM. PROC. ANN. art. 36.29(a) (West Supp. 2012); Ngo, 175
S.W.3d at 745. Each and every juror must agree that the defendant committed the
same, single, specific criminal act. Ngo, 175 S.W.3d at 745. Non-unanimity may
result “when the jury charge fails to properly instruct the jury, based on the
indicted offense(s) and specific evidence in the case, that its verdict must be
unanimous.” Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011).
The charge in this case allowed the jury to find Pierre guilty of murder if it
found (1) that Pierre either intentionally or knowingly caused death, or (2) that he
intended to cause substantial risk of life or serious bodily injury, in any of its
forms, and committed an act clearly dangerous to human life. Pierre specifically
complains that this charge violated his right to a unanimous verdict because it
allowed the jury to convict him of murder without reaching a consensus
concerning whether the State had proven beyond a reasonable doubt either one of
the two paragraphs alleged in the indictment.
To meet the jury unanimity requirement, the jury must agree that the
defendant committed one specific crime. Landrian v. State, 268 S.W.3d 532, 535
(Tex. Crim. App. 2008). The jury need not, however, find that the defendant
committed that crime in one specific way or even with one specific act. Id. The
unanimity requirement is not violated when the jury is instructed on alternative
4 theories, or manner and means, of committing the same offense. Martinez v. State,
129 S.W.3d 101, 103 (Tex. Crim. App. 2004). When alternate theories of
committing the same offense are submitted to the jury in the disjunctive, and the
jury is required by the charge to find each element of the offense beyond a
reasonable doubt, it is appropriate for the jury to return a general verdict if the
evidence is sufficient to support a finding under any of the theories submitted. See
Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991).
In reviewing a disjunctive jury charge, we first determine whether the
separate application paragraphs contain different criminal acts or whether they
merely instruct as to different means of committing a single offense. If the
disjunctive paragraphs contain different criminal acts, then the jury must be
instructed that it cannot return a guilty verdict unless it agrees unanimously that the
defendant committed one of the acts. Ngo v. State, 175 S.W.3d at 744. If the
disjunctive paragraphs merely inform of different means of committing a single
offense, then the jury does not have to unanimously agree on which alternative
means the defendant used to commit the offense. Leza v. State, 351 S.W.3d 711,
714 (Tex. Crim. App. 2011); see Young v. State, 341 S.W.3d 417, 422 (Tex. Crim.
App. 2011).
5 In deciding whether the paragraphs allege the commission of separate
criminal acts or separate means of committing one act, “[a] handy, though not
definitive, rule of thumb is to look to the statutory verb defining the criminal act.”
Ngo, 175 S.W.3d at 745 n.24. Under section 19.02 of the Texas Penal Code, a
person commits the offense of 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 ANN. § 19.02(b)(1)-(2) (West 2003). A plain reading of this
statute reveals that the subsections (1) and (2) differ in their descriptions of the
mental state required for culpability in causing death or serious bodily injury.
Compare TEX. PENAL CODE ANN. § 19.02(b)(1) (requiring mental state of
intentionally or knowingly) with id. § 19.02(b)(2) (requiring intentional conduct).
The Texas Court of Criminal Appeals has held that these provisions set forth
alternative manner or means of committing the offense of murder. Aguirre v.
State, 732 S.W.2d 320, 326 (Tex. Crim. App. 1987); Huffman v. State, 267 S.W.3d
902, 905 (Tex. Crim. App. 2008); see Yost v. State, 222 S.W.3d 865, 876 (Tex.
Crim. App. 2007); Garcia v. State, 246 S.W.3d 121, 141 (Tex. App.—San Antonio
2007, pet ref’d). Thus, whether the jury determined that Pierre intentionally or
knowingly caused Matthews’s death, or that Pierre caused his death by committing
an act clearly dangerous to human life with the intent to cause serious bodily
6 injury, the charge asked the jury to consider only one single crime of murder. The
charge submitted in this case did not pose any danger that Pierre might be found
guilty of murder on a less than unanimous verdict. We hold that the trial court did
not violate Pierre’s right to a unanimous verdict by submitting the charge as
worded.
Admission of evidence
Pierre also contends that the trial court erred in admitting Officer Abel’s
testimony concerning Pierre’s use of an alias to Abel and his fugitive status,
complaining that the evidence was not relevant, or, alternatively, had an unfairly
prejudicial effect that outweighed any probative value it may have had. See TEX.
R. EVID. 401, 403. To preserve an objection for appellate review, that objection
must be timely and specific enough to make the trial court aware of the complaint.
TEX. R. APP. 33.1(a)(1)(A). The record shows that Pierre did not timely object to
Officer Abel’s testimony on either on the grounds raised on appeal or any other
basis. As a result, we hold that Pierre waived this complaint for appeal.
Conclusion
We hold that the trial court’s charge to the jury did not violate Pierre’s right
to a unanimous verdict. We further hold that Pierre waived any objection to
7 Officer Abel’s testimony concerning Pierre’s use of an alias and his fugitive status.
We therefore affirm the judgment of the trial court.
Jane Bland Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).