Kelvin Lee Roy v. State

• Court: Court of Appeals of Texas
• Decided: December 16, 2020
• Docket: 09-19-00010-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________ NO. 09-19-00010-CR ________________

KELVIN LEE ROY, Appellant

V.

THE STATE OF TEXAS, Appellee ________________________________________________________________________

On Appeal from the 163rd District Court Orange County, Texas Trial Cause No. B140221-R ________________________________________________________________________

MEMORANDUM OPINION

Kelvin Lee Roy appeals his murder conviction. See Tex. Penal Code Ann. §

19.02(b)(2). In two issues, Roy argues 1) the evidence was legally insufficient to

demonstrate that he intended to cause serious bodily injury and intentionally

committed a dangerous act, and 2) the evidence only supports that he was guilty of

manslaughter, not murder. For the reasons explained below, we affirm as modified.

1 Background

As Roy confines our legal sufficiency review to whether the evidence was

sufficient to demonstrate his intent to commit murder under Penal Code section

19.02, we limit our discussion to the witness testimony relevant to that issue.

On February 7, 2014, fourteen-year-old A.B. and her mother were in the

family’s van driving southbound on Main Street in Vidor, Texas, when they stopped

on the downward decline of a railroad crossing for a red stoplight. 1 The decline at

the railroad crossing was such that only one car could be on the downward decline

if a red light had stopped traffic. At the same time, Roy, driving a sedan southbound

on Main Street in Vidor, struck the rear of the van with such force that it essentially

destroyed the van on the passenger side, causing A.B. to be ejected from the van in

the collision. Roy’s sedan landed upside down when it finally stopped. A.B. died

from the injuries she received in the collision. Roy had minor injuries. But his

passenger and girlfriend, T.B., was hospitalized for two months due to the injuries

she suffered in the collision.

T.B. testified that on February 7, 2014, she and Roy left their home late in the

evening to get T.B. dinner at a fast food restaurant in Beaumont, Texas. T.B. testified

1 We refer to the victims and their family members with pseudonyms or initials to conceal their identity. See Tex. Const. art. I, § 30(a)(1) (granting crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”). 2 that the quickest route to the fast food restaurants from their home was via Interstate

10; however, Roy passed the exit and continued travelling east on Interstate 10,

toward Vidor. T.B. explained that she questioned Roy about missing his exit. In

response, he told her to “shut the F up.” After that, Roy then took out a “dip

cigarette[,]” which he smoked. 2

At that point, T.B. began asking Roy to pull over and get off the freeway. Roy

ignored her requests. According to T.B., Roy was driving slowly and drifting

between lanes. She feared they were going to get run over. T.B. testified that Roy

was acting like a crazy person, laughing, and repeating the phrase “one deep[.]”

Scared, T.B. lowered her window and began screaming for help. T.B. then told Roy

she did not want to continue their relationship because she was tired of his

“disrespect[]” and him doing “stupid things[.]”

Roy sped up. He took the exit onto Main Street in Vidor and entered the feeder

road. T.B. pleaded with Roy to pull over, but he looked at her and said “shut the F

up[,]” and “that he’ll kill me, he’ll kill both of us[.]” Roy sped up again, merging

into the southbound lane on Main Street. T.B testified she could see cars stopped

ahead at a stop light “over a train track hill[.]” She begged Roy to slow down. Roy

just looked at her, “mashed” the gas, and the sedan flew over the train tracks,

2 It was explained at trial that a “dip” or “dipped” cigarette is a cigarette that has been dipped in Phencyclidine, otherwise known as PCP. 3 crashing into the van. According to T.B., their car “dived” into the van stopped at

the train crossing, then flipped several times. She also testified Roy never slowed

down or applied his brakes before crashing into the van.

On cross examination, T.B. testified that Roy was acting normally before

smoking the dipped cigarette, but that afterwards, he did not seem rational. She

described that she had seen Roy use PCP on other occasions, but she had never seen

him rendered “unconscious” after using PCP.

Michael Stephenson, who was also driving in the eastbound lanes of Interstate

10 on the day Roy struck the van, observed Roy’s sedan in the eastbound traffic on

Interstate 10. Stephenson explained traffic in the eastbound lanes began backing up

as he approached Vidor. He noticed Roy’s sedan in the left-hand lane, travelling

around 45 miles per hour, and being driven on the shoulder of the highway. Then,

the sedan crossed three lanes of Interstate 10, onto the other side of the highway.

Stephenson testified the sedan was being driven recklessly. He also stated that he

called the police and reported what he had seen.

Joshua Bryan testified that he was traveling southbound on Main Street when

he saw the sedan collide with the van. According to Bryan, he was a passenger in a

vehicle being driven by a coworker, which had stopped at a red light just north of

the crossing. After the vehicle Bryan was in stopped near the crossing, Bryan noticed

a “a car come (sic) speeding around us at - - I’m no expert but I’m going to say [Roy]

4 was doing 45, 50 miles an hour when he come around us.” Roy’s sedan, according

to Roy, almost hit the curb after it passed them. Bryan testified that he never saw the

brake lights on Roy’s sedan and that he heard Roy revving the engine to the sedan

when he went around them. According to Bryan, Roy never tried to stop before he

hit the van; instead, based on what Bryan said he saw, Roy “hit the gas instead of

the brake.”

Bryan’s wife, Brittany Monroe, was also a passenger in the co-worker’s car

with Bryan when Roy’s sedan struck the van. She testified that when Roy passed

them, she noticed a “white flash . . . right beside us[,] . . . it was so fast[,] . . . I never

saw any brake lights[.]”

Victoria Andis, a witness who stopped to help the people whose vehicles had

been involved in the crash, testified she approached the van. She explained that she

saw T.B. trying to crawl out the sedan’s window. According to Andis, T.B. had a

broken leg, and she seemed to be scared and emotional. T.B. told Andis that Roy

was under the influence of “something[,]” and he was trying to kill them. On cross

examination, Andis agreed she gave police a signed statement shortly after the crash

in which she had not disclosed that T.B. said he was trying to kill them. But Andis

did tell police during her statement that Roy was driving crazy, was mad, and that

he was under the influence.

5 Clint Aslin testified that he was part of a two-man paramedic team that took

Roy to the hospital that night. He testified that Roy had no visible “real injuries[,]”

except for a small laceration above his eye and a hematoma on his forehead. Roy

appeared lethargic but he did respond to “painful stimuli.” He explained T.B. said

she did not want the paramedics to take her to the same hospital where they took

Roy because he had just tried to kill her. Emergency responders took Roy to the

hospital in a separate ambulance. Aslin explained that he was in the ambulance

emergency responders used to take Roy to the hospital. He inserted two “large bore

IVs, 18 gauge IVs in both [of Roy’s] arms.” Roy began to wake up on the way to the

hospital and became combative. Roy pulled out both of his IVs, and he told Aslin he

was not going to the hospital and that he was God. Aslin explained the emergency

responder driving the ambulance pulled over and came to help him chemically sedate

Roy so he could be taken safely to the hospital. Aslin testified he could not determine

whether Roy’s behavior resulted from ingesting an intoxicant or an injury to his

head.

While on cross examination, Aslin testified that he is familiar with substances

like PCP. He described it as a substance that makes some people act irrationally,

super-aggressive, and may cause an individual to suffer from hallucinations. While

Aslin acknowledged he had never encountered anyone rendered “unconscious” from

haven taken PCP, PCP results in a “different altered level of consciousness.”

6 Richard Howard testified that he is the patrol captain for the Orange County

Sheriff’s Department. Before working for the Orange County Sheriff’s Department,

Howard worked for the Texas Department of Public Safety, where, for 22 years, he

participated in a “crash reconstruction team.” Howard stated that he participated in

the investigation and reconstruction of the collision between Roy’s sedan and the

van. Based on what he learned in the investigation, Howard expressed his opinion

that Roy’s sedan struck the van with an “extreme amount of force.” Howard agreed,

however, he could not determine from his investigation how fast Roy was traveling

just before the crash occurred. But he still felt that excessive speed was one of the

factors that led to the collision given the fact that the sedan left the ground as it

crossed the train crossing and hit the van. He testified that for the car to be launched

into the air, Roy’s sedan was travelling at “either a constant speed or accelerat[ing].”

Howard described that his investigation included reviewing photographs taken at the

scene. He also spoke to the police officers who went to the scene about whether they

had seen scuff or skid marks to indicate signs of braking marks, but he learned they

saw none. He explained it is less likely to have a vehicle launched into the air if the

driver brakes before impact. Howard also explained he only had one experience with

one case involving an individual who had taken PCP. That person’s behavior was

“different[,] . . . [t]he behavior was aggressive with paranoia.”

7 Roy testified in his own defense at trial. According to Roy, he and T.B. were

driving to Vidor on February 7, 2014, to pay a man who repaired the brakes on T.B’s

vehicle. Roy explained that he went to Vidor, but then realized the mechanic was

not home and left. Roy admitted that he smoked a cigarette laced with PCP after

leaving the mechanic’s home. Roy testified that after smoking the cigarette, he

“began feeling like sick and light-headed, dizzy.” Roy explained he felt as if he was

losing consciousness. He also testified this is his normal reaction to PCP. He also

testified about what he saw as he approached the railroad tracks on the night the

collision occurred. He stated:

As I approach the four-way stop sign, it’s like I’m looking and I don’t - - I don’t know where I’m at. So, I’m like - - I tell [T.B.] - - I’m like I’m fixing to pull over and let her drive. So, I guess after that, that was the last thing I can remember telling her.

Roy testified he did not remember the crash, the ambulance ride to the hospital, or

being at the hospital. According to Roy, he woke up in jail. He denied he was angry

with T.B. and denied threatening to kill her.

At the conclusion of the guilt-innocence phase of the trial, the jury found Roy

guilty of murder and sentenced him to eighty years of incarceration in the Texas

Department of Criminal Justice. Roy filed a timely appeal.

Standard of Review

At trial, Roy did not dispute that he struck a van on February 7, 2014. He also

did not dispute that the collision killed A.B. Instead, he argued he did not act 8 intentionally with respect to his conduct, which resulted in A.B.’s death. In his

appeal, Roy argues the evidence is insufficient to support the jury’s verdict that he

knowingly or intentionally caused A.B.’s death. In reviewing a defendant’s claim

asserting the evidence in his trial does not support the verdict, we use a familiar

standard of review. We review the evidence admitted in the trial in the light favoring

the jury’s verdict, and we decide whether any rational trier of fact could find the

essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia,

443 U.S. 307, 319 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007). We give deference to the jury’s responsibility to fairly resolve conflicting

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts

to ultimate facts. Hooper, 214 S.W.3d at 13.

Analysis

A person commits the offense of murder if he:

(1) intentionally or knowingly causes the death of an individual; (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or (3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

See Tex. Penal Code Ann. § 19.02(b). The indictment in this case alleged that Roy

on or about February 7, 2014, . . . did then and there intend to cause serious bodily injury to an individual, [T.B.], and did then and there intentionally commit an act which was clearly dangerous to human life, 9 to wit: driving a vehicle in which the said [T.B.] was a passenger into another vehicle causing the vehicles to collide which said act caused the death of [A.B.]

Whether the defendant acted while having the required mens rea, that is the

state of mind required under a criminal statute to establish the defendant is guilty, is

a question of fact that the jury decides from the direct and circumstantial evidence

admitted during the defendant’s trial. Brown v. State, 122 S.W.3d 794, 800 (Tex.

Crim. App. 2003) (citing Smith v. State, 965 S.W.2d 509, 518 (Tex. Crim. App.

1998)). “Intent to murder can be inferred from circumstantial evidence such as a

defendant’s acts and words and the extent of the victim’s injuries.” Gonzalez v. State,

No. AP-77,066, 2020 WL 6482409, at *22 (Tex. Crim. App. Nov. 4, 2020) (citations

omitted). The Court of Criminal Appeals has explained that murder is a “result-of-

conduct” offense, and the crime is defined by “one’s objective to produce, or a

substantial certainty of producing a specified result,” i.e. death. Louis v. State, 393

S.W.3d 246, 251 (Tex. Crim. App. 2012) (quoting Roberts v. State, 273 S.W.3d 322,

329 (Tex. Crim. App. 2008), abrogated in part on other grounds by Ex parte Norris,

390 S.W.3d 338, 341 (Tex. Crim. App. 2012). “Mental culpability is a question of

fact to be determined by the jury from all the facts and circumstances in evidence.”

Walter v. State, 581 S.W.3d 957, 973 (Tex. App.—Eastland 2019, pet. ref’d) (citing

Hemphill v. State, 505 S.W.2d 560, 562 (Tex. Crim. App. 1974)). “Intent is of such

a nature that it is most often proven through circumstantial evidence surrounding the

10 crime.” Id. (citing Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991),

overruled on other grounds by Fuller v. State, 829 S.W.2d 191 (Tex. Crim. App.

1992). Under Penal Code section 19.02(b)(2), intent to kill is not required, and the

State meets its burden if the evidence shows that the defendant intended to cause

serious bodily injury or commit a dangerous act. Ramirez v. State, 229 S.W.3d 725,

729 (Tex. App.—San Antonio 2007, no pet.) (citations omitted).

Viewed in the light most favorable to the verdict, the evidence supports the

jury’s conclusion that Roy intended to cause serious bodily injury and committed an

act clearly dangerous to T.B.’s life, which caused A.B.’s death. While Roy testified

he could not remember much after he smoked a cigarette dipped in PCP, and that he

was not trying to kill T.B., the jury could have reasonably decided not to have to

believe him. See Gilbert v. State, 575 S.W.3d 848, 859–60 (Tex. App.—Texarkana

2019, pet. ref’d) (citations omitted) (“The jury is also the sole judge of the credibility

of the witnesses and the weight to be given their testimony and may ‘believe all of a

witness[’] testimony, portions of it, or none of it.’”). The jury was free to believe

T.B.’s testimony that Roy became irrational after smoking a cigarette dipped in PCP,

said he wanted to kill T.B., and that he began driving in a way clearly dangerous to

human life. See id. at 860 (noting that we give almost complete deference to the

jury’s determination of credibility). The jury also heard testimony from several

eyewitnesses who testified they heard Roy’s sedan accelerating before flying over

11 the railroad track, he never applied apply his brakes, and he did not slow down. See

Owens v. State, 549 S.W.3d 735, 742 (Tex. App.—Austin 2017, pet. ref’d)

(affirming the jury’s finding that the appellant intentionally committed murder

because the appellant actions such as driving his car into a group of people, never

applying his brakes, and “increasing his speed as he drove” were reasonably certain

to cause death).

From this evidence, as well as Roy’s own testimony acknowledging that he

was aware that smoking PCP typically caused him to lose consciousness, the jury

could have rationally found Roy intended to cause another a serious bodily injury

and that his conduct was clearly dangerous to human life. See Tex. Penal Code Ann.

§ 19.02(b)(2); see also Alami v. State, 333 S.W.3d 881, 888 (Tex. App.—Fort Worth

2011, no pet.) (explaining that a rational jury could find that the appellant committed

an act dangerous to human life when he drove at an excessive speed and collided

with another car, ultimately causing the death of his passenger).

Conclusion

Based on the standard of beyond reasonable doubt, we conclude the jury, from

the evidence admitted in Roy’s trial, could rationally find Roy guilty of murder. See

Jackson, 443 U.S. at 319. Having considered Roy’s arguments, we overrule his first

issue, in which he argues the evidence is insufficient to support the verdict. Given

our resolution of Roy’s first issue, we need not address his other issue, in which he

12 argues the evidence supports only a finding of manslaughter. See Tex. R. App. P.

47.1.

While we affirm Roy’s conviction, we note neither Roy’s indictment nor the

judgment recite the correct section number of the Penal Code that is relevant to

Roy’s conviction for murder. Neither party brought this error to the Court’s

attention.

Roy’s indictment identifies Roy and his crime, and the indictment tracks the

statutory language. Thus, Roy was on notice of the crime the State charged him with

having committed. See id. For that reason, the fact the judgment does not recite the

correct version of the Penal Code is a clerical error that we may correct so the

judgment reflects the Penal Code provision that the jury found Roy violated. See

Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993)

(stating this Court has the authority to reform the trial court’s judgment to correct

clerical errors). We modify the judgment in Roy’s case by striking the section

“19.02” and inserting “19.02(b)(2)” in its stead. As modified, the trial court’s

judgment is affirmed.

AFFIRMED AS MODIFIED.

_______________________________ CHARLES KREGER Justice

13 Submitted on April 30, 2020 Opinion Delivered December 16, 2020 Do Not Publish

Before Kreger, Horton, and Johnson, JJ.