Johnny Flores v. State

Opinion

ACCEPTED 13-14-00338-CR THIRTEENTH COURT OF APPEALS FILED CORPUS CHRISTI, TEXAS IN THE 13TH COURT OF APPEALS 6/11/2015 4:18:05 PM CORPUS CHRISTI - EDINBURG CECILE FOY GSANGER CLERK

6/11/15 CAUSE NUMBER 13-14-00338-CR CECILE FOY GSANGER, CLERK BY DTello RECEIVED IN IN THE COURT OF APPEALS FOR 13th COURT OF APPEALS CORPUS THE THIRTEENTH APPELLATE DISTRICT CHRISTI/EDINBURG, TEXAS AT CORPUS CHRISTI 6/11/2015 4:18:05 PM CECILE FOY GSANGER Clerk _____________________________________________________________________________

JOHNNY FLORES, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

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APPELLANT’S BRIEF

ON APPEAL FROM THE 148TH DISTRICT COURT, NUECES COUNTY

Nathan Burkett State Bar No. 24058264 P.O. Box 3189 Corpus Christi, Texas 78463 (361) 883-8868 (361) 883-0733 (fax) Attorney for Appellant

ORAL ARGUMENT IS NOT REQUESTED

i TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................................................iii

TABLE OF AUTHORITIES..........................................................................................................iv

STATEMENT OF THE CASE........................................................................................................1

STATEMENT OF GROUNDS OF ERROR...................................................................................1

STATEMENT OF FACTS..............................................................................................................2

BRIEF OF THE ARGUMENT........................................................................................................3

PRAYER..........................................................................................................................................6

CERTIFICATE OF SERVICE........................................................................................................7

CERTIFICATE OF COMPLIANCE...............................................................................................7

ii IDENTITY OF PARTIES AND COUNSEL

Appellant’s Trial Attorneys

CECIL STARCHER State Bar No. 19060280 102 N. Staples Street Corpus Christi, Texas 78401 Phone: (361) 882-0800

DAVID KLEIN State Bar No. 24007497 P.O. Box 2446 Corpus Christi, Texas 78403 Phone: (361) 815-0053

Appellant’s Appellate Attorney

Nathan Burkett State Bar No. 24058264 P.O. Box 3189 Corpus Christi, Texas 78463 (361) 883-8868 (361) 883-0733 (fax)

Appellee’s Attorney

Mark Skurka Nueces County District Attorney 901 Leopard Street, Room 206 Corpus Christi, Texas 78401 (361) 888-0410

iii INDEX OF AUTHORITIES

State Cases

Ojeda v. State, 712 S.W.2d 742 (Tex. Crim. App. 1986)

Bell v. State, 693 S.W.2d 434 (Tex. Crim. App.1985)

Moore v. State, 574 S.W.2d 122 (Tex. Crim. App. 1978)

Cavazos v. State, 382 S.W.3d 377 (Tex. Crim. App. 2012)

Saunders v. State, 840 S.W.2d 390 (Tex. Crim. App. 1992)

iv CAUSE NO. 13-14-00338-CR

IN THE COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS AT CORPUS CHRISTI

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TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

COMES NOW JOHNNY FLORES, Appellant in this cause, and files this Appellant’s

Brief, and in support thereof would show as follows:

I. STATEMENT OF THE CASE

Appellant was indicted with one count of murder alleged to have occurred on July 4,

2013. RR Vol. 3, p. 15. After the close of evidence, Appellant requested a manslaughter

instruction, a lesser included offense. RR Vol. 4, pp. 120-121. After a lengthy argument, the

trial court denied Appellant’s instruction for the manslaughter instruction. RR Vol. 4, p. 131.

The jury found Appellant guilty of murder. RR Vol. 4, p. 170. The jury did not find sudden

passion, and assessed Appellant’s punishment at life in prison and a $10,000.00 fine. RR Vol. 5,

p. 169. This timely appeal ensued.

1 II. STATEMENT OF GROUNDS OF ERROR

1. THE TRIAL COURT ERRED IN DENYING APPELLANT’S REQUEST FOR A JURY INSTRUCTION ON THE LESSER INCLUDED OFFENSE OF MANSLAUGHTER BECAUSE THE INTENT EVIDENCE ADDUCED AT TRIAL WAS SUBJECT TO MULTIPLE INTERPRETATIONS.

III. FACTS

The State alleged that Appellant caused the death of Terry Mechell, his girlfriend, by

asphyxia. Appellant’s custodial interrogation video with Corpus Christi Police Detective Ralph

Lee was admitted into evidence and published to the jury. RR Vol. 6, SX-4. The initial conflict

arose because Appellant believed he had contracted a sexually transmitted disease from Mechell,

a prostitute. Id. Appellant admitted to striking and, at some point, choking Terry Mechell. Id.

At approximately seven minutes into the video interview, Appellant states, “I had no idea it was

over until it was over. I snapped and I checked her pulse and she has a light pulse.” Id. He then

contemplated suicide with a knife, but ultimately decided to call 911. Id. Appellant stated that

he had been diagnosed with schizoaffective disorder, was not currently on medication and had

received services through MHMR on and off for about four years. Id.

Dr. Ray Fernandez, the Nueces County Medical Examiner, testified for the state. RR

Vol. 3, p. 177 et seq. Dr. Fernandez testified that in performing an autopsy, Mechell’s eyelids

and the white areas of her eyes showed petechial hemorrhages, or pinpoint size bleeds. RR Vol.

3, pp. 192-193. Dr. Fernandez testified that petechial hemorrhages typically occur in an “on and

off” type pressure as opposed to continuous pressure applied to the mouth, nose or throat. RR

Vol. 3, p. 93-94. Dr. Fernandez testified that even being in a “scuffle” could cause the petechial

hemorrhages. RR Vol. 3, p. 213. Although Dr. Fernandez noted that Mechell suffered a broken

2 nose, Dr. Fernandez did not note whether or not the broken nose caused a total obstruction of the

airway. RR Vol 3, p. 214. Dr. Fernandez conceded that the broken nose could have been caused

by blunt trauma, such as a punch. Id. There was no damage to Mechell’s windpipe or scratches

or bruising to the neck, any of which would have been consistent with strangulation. RR. Vol. 3,

pp. 216-217, 219.

During the defense case in chief, testimony was taken of Troy Martinez, Psy. D., who

examined and evaluated Appellant’s mental condition and history. RR Vol. 4, p. 50 et seq. Dr.

Martinez also examined Appellant’s prior mental health records. RR Vol. 4, p. 62. Dr. Martinez

testified that Appellant had been diagnosed and treated for a “major mental illness,” although the

specific diagnosis at different times included both bipolar I disorder and schizoaffective disorder.

RR Vol. 4, pp. 66-67. Since Appellant had been off of his medications for several months before

July 4, 2013, Dr. Martinez testified that there would have likely been a deterioration of

Appellant’s mental condition from the time that he was earlier medicated. RR Vol 4., pp. 70-71.

Dr. Martinez further testified that when a person with a major mental illness, like Appellant,

suffers a deterioration from lack of medication, that person’s judgment, impulse control and

stability would be negatively affected. RR Vol 4., p. 82. Dr. Martinez opined that a person with

a major mental illness and a lack of medicine, such as Appellant, could act recklessly. Id.

IV. SUMMARY OF THE ARGUMENT

Appellant requested and was denied a jury charge instruction on the lesser included

offense of manslaughter. Because manslaughter is a lesser included offense of murder, as alleged

in this case, and because the evidence adduced at trial regarding intent was subject to multiple

interpretations, the trial court erred in denying Appellant’s requested instruction.

3 V. BRIEF OF THE ARGUMENT

It is well established that if any evidence raises the issue of a lesser included offense, a

charge on that offense must be included in the trial court's charge. Ojeda v. State, 712 S.W.2d

742 (Tex. Crim. App. 1986), citing Bell v. State, 693 S.W.2d 434 (Tex. Crim. App.1985), and

Moore v. State, 574 S.W.2d 122 (Tex. Crim. App. 1978). The Aguilar/Rousseau test determines

an instruction on a lesser-included offense should be given to the jury, with the court deciding 1)

if the proof necessary to establish the charged offense also includes the lesser offense; and 2)

whether the evidence shows that if the Appellant is guilty, he is guilty only of the lesser offense.

Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012). In Cavazos, the Court of

Criminal Appeals held that manslaughter is a lesser included offense of murder where the State

alleges that the defendant intends to cause serious bodily injury by committing an act clearly

dangerous to human life. Id at 384. In this case, the State of Texas alleged that Appellant “with

the intent to cause serious bodily injury to an individual, namely, Terry Mechell Ramos, commit

an act clearly dangerous to human life that caused the death of said Terry Mechell Ramos by

asphyxia.” RR Vol. 3, p. 15. Like in Cavazos, manslaughter is a lesser included offense of

murder, as alleged by the State of Texas in this case, and Appellant has met the first prong of the

Aguilar/Rousseau test. The trial court even acknowledged as much. RR Vol. 4, pp. 127-128.

There are two ways by which Appellant can satisfy the second prong of the test: 1) there

may be evidence that tends to refute or negate other evidence establishing the greater offense;

and 2) if the evidence presented is subject to different interpretations. Saunders v. State, 840

S.W.2d 390, 391-92 (Tex. Crim. App. 1992). The latter of the two is applicable in this case. In

this case, intent to cause serious bodily injury was only shown by circumstantial evidence.

4 Similarly, in Saunders, the defendant, charged with murder with intent to kill a baby by

squeezing the back of his head, requested and was refused an instruction on the lesser included

offense of criminally negligent homicide. Id. at 391. The only trial evidence on intent was a

witness who saw, fifteen days prior to the child’s death, the defendant squeezing the back of the

baby’s head, and several other injuries consistent with hitting, shaking, blows or a fall. Id. The

Court of Criminal Appeals concluded that the same circumstantial evidence of intent to kill could

also be interpreted to show criminal negligence, noting “a jury could also conclude based on the

same evidence that appellant may not have known his actions could kill the baby, even though he

ought to have been aware of this risk.” Id. at 392.

In this case the facts are remarkably similar to Saunders, in that there is no direct

evidence of intent. The facts of this case simply show that Appellant squeezed Mechell’s neck.

RR Vol. 6, SX-4. Detective Lee did not ask and Appellant did not volunteer that he intended to

kill or injure Mechell, his knowledge that her death could result, or his awareness that a risk of

death existed. Id.; See also Saunders, 840 S.W.2d at 392. Like any other witness, the jury, as

the exclusive judges of credibility, could have considered all, some or none of the testimony of

Dr. Martinez, Dr. Fernandez and Appellant’s own statements in the interview. Dr. Fernandez

failed to determine whether or not the nasal fracture fully obstructed Mechell’s airway; thus, he

failed to rule out that a single punch to the nose could have possibly caused the asphyxiation that

formed the basis of his opinion. RR Vol 3, p. 214. The jury could have concluded, as Dr.

Fernandez states was possible, that the petechial hemorrhages noted were caused by the fight,

and not strangulation, or that they were caused by a reckless “on and off” pressure as opposed to

a continuous one. RR Vol 3, p. 93-94, 213 Furthermore, the jury could have considered that

5 Appellant, as a person with a major mental illness according to Dr. Martinez’ testimony, could

have acted recklessly as opposed to intentionally in the manner of his actions. RR Vol 4., p. 82.

Even the trial prosecutor conceded that the difference between specific intent, recklessness and

criminal negligence was at issue in the case, arguing to the trial court that Dr. Martinez “cannot

specifically say whether that individual was negligent or reckless, a jury gets to decide that.

That's an ultimate jury question.” RR Vol. 4, pp. 80-81.

The evidence elicited at trial and described above shows that the intent element of the

case in question was subject to multiple interpretations. Thus, Appellant was entitled to a jury

instruction on the lesser included offense of manslaughter, and the trial court erred in denying

Appellant’s request for a jury instruction on the lesser included offense of manslaughter.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant Johnny Flores prays that this

court sustain Appellant’s ground of error, reverse the judgment of the trial court, and remand this

cause to the trial court for a new trial.

Respectfully submitted,

The Law Offices of Nathan Burkett P.O. Box 3189 CORPUS CHRISTI, TX 78463 Tel: (361) 883- 8868 Fax: (361) 883- 0733

By: s/ Nathan Burkett Nathan Burkett State Bar No. 24058264 burkett.nathan@gmail.com Attorney for Johnny Flores

6 CERTIFICATE OF SERVICE

This is to certify that on June 11, 2015, a true and correct copy of the above and foregoing

brief was served on the Nueces County District Attorney's Office at 901 Leopard St., Room 206,

Corpus Christi, Texas, by hand delivery.

/s Nathan Burkett Nathan Burkett

CERTIFICATE OF COMPLIANCE

In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify that the number

of words in this brief, excluding those matters listed in Rule 9.4(i)(1), is 1,489.