Kelly v. State

195 S.W.3d 753, 2006 Tex. App. LEXIS 4431, 2006 WL 1420366
CourtCourt of Appeals of Texas
DecidedMay 24, 2006
Docket10-05-00209-CR, 10-05-00210-CR
StatusPublished
Cited by14 cases

This text of 195 S.W.3d 753 (Kelly v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelly v. State, 195 S.W.3d 753, 2006 Tex. App. LEXIS 4431, 2006 WL 1420366 (Tex. Ct. App. 2006).

Opinions

OPINION

FELIPE REYNA, Justice.

A jury convicted Terrence Dewaine Kelly of murder and attempted murder and assessed his punishment at life imprisonment and a $10,000 fine for each offense. Kelly contends in his sole point that the court erred by denying his request for an instruction in the charge on the affirmative defense of insanity. Because there is no testimony in the record providing a definite opinion on the issue of insanity, we will affirm.

Pertinent Testimony

Kelly cites the testimony of several witnesses to support his contention. The complainant in the attempted murder, Carolyn Thomas, was asked to describe Kelly’s appearance when he fatally shot Thomas’s mother and shot Thomas in the face.

“I cannot describe it, that look.”
He looked like “the Devil himself.”
“It did not [look like Kelly].”
“It was a look of nothing. A blank look.”

Kelly called his mother Ada Baker after the shooting and asked her to come get him. Baker was also asked to describe his appearance that evening.

“It scared me the way he looked in his eyes. He wasn’t hisself.” [sic]
“He looked dangerous. His eyes was bloodshot.”
“He wasn’t Terrence. He was somebody else. I can’t explain it.”
“He was just jumping, moving, moving around in his seat, jumping and going on, just-I don’t know. I cannot explain. Just jumping and looking crazy and funny and strange and everything.”
“It scared me. I had never seen him that way. Never have seen him in that condition, the way he was.”

When Baker saw that Kelly had a handgun, she stopped her car and told him to give it to her. They started fighting for control of the gun, and it discharged. Baker then fled the car.

Kelly’s brother Wendell Woods found him sitting in Baker’s car with the engine running. Woods called Kelly’s name several times before he responded, saying that he had been shot. Kelly then got in [755]*755Woods’s car, and Woods started driving him to the hospital. Kelly “started praying and talking random talk, just random talking.” Woods testified that he “couldn’t really comprehend what [Kelly] was saying, it was such a random ...”

As Woods drove Kelly to the hospital, Kelly asked, “Is this the end of me?” According to Woods, Kelly “didn’t know if he was him or who he was.” Kelly then hit Woods in the face, causing them to crash into a pole. Woods fled the car and went to a nearby house to report the accident. As Woods knocked on the door of the house, Kelly ran up from behind, kicked the door in, and forced Woods inside. Kelly and Woods wrestled in the house. Woods “finally tossed him over my shoulder into the bathtub, and [Kelly] started yelling he’s burning up.”

When firefighters responded to the scene, Woods began discussing the accident with them. “[A] few minutes later [Kelly] came outside of the house with no clothes on, just underwear.” “When he got outside and he saw the lights, he tripped with the lights and he started dancing, messing with the gauges of the fire engine, climbing on top of it, running around.”

On cross-examination, Woods was asked to describe Kelly’s initial appearance when Woods found him sitting in Baker’s car.

“The look was — Jekyll and Hyde. That’s the closest I can get to you.”
“He was startled. He didn’t know who I was.”

One of the firefighters who responded to the accident testified that they found Kelly in the bathroom saying, “I’m one with the Lord, and I’m walking with Jesus tonight.” Kelly came out of the bathroom repeatedly chanting this phrase. The firefighter believed Kelly to have “an altered mental status.” Kelly then ran from the house, stripping off his clothing as he ran. He then tried to climb into the front right seat of the fire truck. The firefighter tried to prevent Kelly from entering the fire truck. They struggled, and Kelly eventually walked away.

As Kelly walked in the street, continuing to chant the above-quoted phrase, the firefighter tried to persuade him to stop walking in the street and get on the sidewalk. “All of a sudden,” Kelly turned and ran for the fire truck again. He climbed into the cab and began activating the sirens and air horns. The firefighters waited for the police to arrive and remove Kelly from the fire truck.

Dr. Rod Ryan, a jail physician, testified about mental health treatment Kelly received while awaiting trial. Dr. Ryan testified that about four months after Kelly’s arrest, he began exhibiting symptoms of depression, so the doctor prescribed a small dose of an antidepressant, amitrip-tyline. Dr. Ryan observed no change in Kelly’s condition after a month, so he continued to prescribe this medication. Later, Dr. Ryan decided to increase the dosage because there had been no improvement in Kelly’s symptoms.

About nine months after arrest, Kelly reported to Dr. Ryan that he was hearing voices. Considering Kelly’s depression, Dr. Ryan concluded that Kelly was in an “unstable mood situation ... rather than overtly psychotic.” The doctor testified that this would be clinically classified as a mood disorder. He prescribed divalproic acid, a “mood stabilizer,” for Kelly.

Some months later, an MHMR worker conducted a mental health exam on Kelly and concluded that he was exhibiting symptoms of paranoia. In response, Dr. Ryan prescribed a small dosage of Haldol, an antipsychotic medication. After about two months, the doctor evaluated Kelly and concluded that the current dosages [756]*756were appropriate. At trial, he read a note authored by a psychiatrist who had seen Kelly, stating that Kelly continued to hear voices and suggesting that an increase in the dosage of Haldol be considered. Dr. Ryan testified that he could not give an opinion as to whether Kelly suffers from a mental disease or defect which prevented him from knowing right from wrong on the date of the crimes of which he was convicted.

Pertinent Law

“A defendant is entitled to an instruction on [a defensive issue] if the issue is raised by the evidence, whether that evidence is strong or weak, unim-peached or contradicted, and regardless of what the trial court may think about the credibility of the defense.” Ferrel v. State, 55 S.W.3d 586, 591 (Tex.Crim.App.2001); Johnson v. State, 157 S.W.3d 48, 50 (Tex.App.-Waco 2004, no pet.); accord King v. State, 174 S.W.3d 796, 813 (Tex.App.-Corpus Christi 2005, pet. ref'd); Stefanoff v. State, 78 S.W.3d 496, 499 (Tex.App.-Austin 2002, pet. ref'd); Pennington v. State, 54 S.W.3d 852, 856 (Tex.App.-Fort Worth 2001, pet. ref'd). We review the evidence in the light most favorable to the defendant to determine whether a defensive issue should have been submitted. See Ferrel, 55 S.W.3d at 591; Johnson, 157 S.W.3d at 50; Stefanoff, 78 S.W.3d at 500; Pennington,

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Kelly v. State
195 S.W.3d 753 (Court of Appeals of Texas, 2006)

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Bluebook (online)
195 S.W.3d 753, 2006 Tex. App. LEXIS 4431, 2006 WL 1420366, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-state-texapp-2006.