PD-1478-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS December 18, 2015 Transmitted 12/16/2015 1:26:12 PM Accepted 12/18/2015 11:57:12 AM ABEL ACOSTA NO. PD-1478-15 CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS AUSTIN, TEXAS
DENNIS ROY REDDING § APPELLANT § VS. § § THE STATE OF TEXAS § APPELLEE
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
NO. 01-14-00536-CR IN THE COURT OF APPEALS FOR THE FIRST DISTRICT
APPEAL FROM CAUSE NO. 12CR2363 IN THE 212TH DISTRICT COURT OF GALVESTON COUNTY, TEXAS
STANLEY G. SCHNEIDER SCHNEIDER & McKINNEY, P.C. TBC NO. 17790500 440 LOUISIANA, SUITE 800 HOUSTON, TEXAS 77002 713-951-9994 (OFFICE) 713-224-6008 (FAX) STANS3112@AOL.COM (EMAIL)
ATTORNEY FOR APPELLANT IDENTITY OF PARTIES
The following is a complete list of all parties to the trial court’s judgment, and the names and addresses of all trial and appellate counsel:
Dennis Roy Redding .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appellant
State of Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appellee
Stanley G. Schneider . . . . . . . . . . . . . . . . . . Appellant’s Retained Counsel at Trial 440 Louisiana, Suite 800 Houston, Texas 77002
Casey Gotro . . . . . . . . . . . . . . . . . . . . . . . . . Appellant’s Retained Counsel at Trial 440 Louisiana, Suite 800 Houston, Texas 77002
Jennifer Ott. . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assistant District Attorney at Trial 600 59th Street, Suite 1001 Galveston, Texas 77551
William D. Reed . . . . . . . . . . . . . . . . . . . . . . . . . Assistant District Attorney at Trial 600 59th Street, Suite 1001 Galveston, Texas 77551
Stanley G. Schneider . . . . . . . . . . . . . . . . Appellant’s Retained Counsel on Appeal 440 Louisiana, Suite 800 Houston, Texas 77002
Jack Roady.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . District Attorney on Appeal 600 59th Street, Suite 1001 Galveston, Texas 77551
Hon. Bret Griffin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Trial Judge
i TABLE OF CONTENTS
IDENTITY OF PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
STATEMENT CONCERNING ORAL ARGUMENT.. . . . . . . . . . . . . . . . . . . . . iii
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
GROUND FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Whether the Court of Appeals erred in determining that the voluntary intoxication instruction submitted the trial court adequately informed the jury that the State retained the burden to prove all of the elements of the offense charged without a specific application paragraph when the jury is instruction that intoxication is not a defense to the offense charged.
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
REASONS FOR GRANTING REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ii STATEMENT CONCERNING ORAL ARGUMENT
The Appellant request oral argument in this case as the issues are complex and
oral argument would benefit this Court to help Clarify any issues the Court may have.
iii INDEX OF AUTHORITIES
CASE PAGE
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984).. . . . . . . . . . . . . . . . . 10
Davis v. State, 313 S.W.3d 317 (Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . . 6, 7
Delgado v. State, 235 S.W.3d 244 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . 6
Druery v. State, 225 S.W.3d 491 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . 10
Ex parte Chandler, 719 S.W.2d 602 (Tex. Crim. App. 1986). . . . . . . . . . . . . . . . . 7
Gray v. State, 152 S.W.3d 125 (Tex. Crim. App. 2004).. . . . . . . . . . . . . . . . . . . 6, 7
Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . . 7
Plata v. State, 926 S.W.2d 300 (Tex. Crim. App. 1996). . . . . . . . . . . . . . . . . . . . . 7
Raby v. State, 970 S.W.2d 1 (Tex. Crim. App. 1998).. . . . . . . . . . . . . . . . . . . . . . . 7
Ramos v. State, 547 S.W.2d 33 (Tex. Crim. App. 1977). . . . . . . . . . . . . . . . . . . . . 7
Reeves v. State, 420 S.W.3d 812 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . . . . 11
Sakil v. State, 287 S.W.3d 23 (Tex. Crim. App. 2009).. . . . . . . . . . . . . . . . . passim
Taylor v. State, 885 S.W.2d 154 (Tex. Crim. App. 1994). . . . . . . . . . . . . . . . . . 5, 6
Vasquez v. State, 389 S.W.3d 361 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . 7
Yzaguirre v. State, 394 S.W.3d 526 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . . 7
iv STATUTES AND RULES
TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). . . . . . . . . . . . . . . . . . . . . . . 6
TEX. PENAL CODE ANN. § 8.04. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
TEX. R. APP. P. 9.4.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
TEX. R. APP. P. 9.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
TEX. R. APP. P. 68. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 13
OTHER
Comm. on Pattern Jury Charges, State Bar of Tex., Texas Criminal Pattern Jury Charges: Defenses § B6.3 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
v TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:
NOW COMES, DENNIS ROY REDDING, Appellant by and through his
attorney of record, STANLEY G. SCHNEIDER, files this Petition for Discretionary
Review pursuant to TEX. R. APP. P. 68. In support of his petition, Appellant will
show this Honorable Court the following:
STATEMENT OF THE CASE
Appellant Dennis Roy Redding was charged by indictment in cause number
12CR2363 with the first degree felony offense of murder, alleged to have occurred
on June 23, 2012. CR6. Appellant entered a plea of not guilty and a jury found him
guilty of the lesser-included offense of manslaughter. CR73. The jury assessed his
punishment at 7 years imprisonment. CR138. Appellant filed a motion for new trial,
which was overruled by operation of law. CR157. This appeals follows.
STATEMENT OF PROCEDURAL HISTORY
The Court of Appeals affirmed Appellant’s conviction in an opinion issued on
October 15, 2015. A copy of the opinion is attached as Appendix A. No motion for
rehearing was filed. This Court granted a motion to extend time to file this petition
for discretionary review to December 16, 2015.
1 GROUND FOR REVIEW
Whether the Court of Appeals erred in determining that the voluntary intoxication instruction submitted the trial court adequately informed the jury that the State retained the burden to prove all of the elements of the offense charged without a specific application paragraph when the jury is instruction that intoxication is not a defense to the offense charged.
STATEMENT OF FACTS
The uncontradicted facts are that on June 23, 2012, Appellant’s best friend of
25 years died when the handgun he was holding went off after a day of drinking. The
issue presented to the jury was whether the shooting was an accident or whether he
was guilty of any criminal offense. While accident is not a defense in Texas, this
Court has stated that an accident occurs when a person acts without a culpable mental
state attached to his actions.
The evidence reflects that Mark Holcomb, the complainant, met Appellant
when their daughters became friends as children. 3RR22. For 25 years, the two men
traveled together, fished together, hunted together and drank together. Appellant’s
wife worked for Holcomb for many years. 3RR22, 82. During visits and vacations,
Holcomb and Appellant often drank heavily and engaged in horseplay. 3RR81.
On Friday, June 22, 2012, Mark and Francine Holcomb went to their weekend
waterfront home in the gated community of Harborwalk in Hitchcock, Texas. 3RR31.
2 They had invited Appellant and his son-in-law Darren Schieffer to stay at the house
and go fishing on Saturday in Mark Holcomb’s boat. 3RR32. Mark Holcomb met
Appellant and Schieffer at the house around 3:00 p.m. and Francine arrived around
5:00 p.m. 3RR41. The men prepared for the fishing trip while Francine cooked
dinner. 3RR42-43. Holcomb and Appellant began drinking upon their arrival.
Holcomb drank beer and gin/tonic while Appellant drank whiskey and coke. 3RR43,
160; 4RR13. Holcomb and Appellant spent a lot of time reminiscing about prior
trips. 4RR77. The group continued to drink until sometime after midnight.
The shooting occurred as the complainant tried to get Appellant to bed.
Immediately after the gunshot, family members and guests converged on the scene.
Jonathon Contois saw Holcomb holding his side and saying, “Call 911, he shot me”;
“it was an accident”; and “he didn’t mean to do it.” 3RR136, 169. Multiple witnesses
stated that the Complainant repeatedly stated that Appellant did not mean to do it and
that the shooting was an accident. When Francine arrived Holcomb was calmly lying
on the floor and told her that it was an accident. 3RR55. Francine saw several men
holding Appellant’s hands behind his back and punching him. 3RR95-96. Francine
stated, “Stop, that’s Mark’s friend, stop.” 4RR46. Jeffrey Dolen heard Appellant say,
“Let me up. It was an accident. Let me up.” 4RR234.
It became apparent that the gunshot wound would likely have been survivable
3 if not for a significant delay in medical treatment. 5RR77, 84. The paramedics were
dispatched at 12:57 a.m. but Holcomb did not arrive at the hospital until 2:15 a.m.
4RR13136, 170; 5RR48. The delay was caused by the remoteness of the location and
the paramedics’ lack of equipment needed to transport Holcomb down the stairs.
4RR143-144. Holcomb was alert and oriented when he arrived at the hospital and
disclosed to the staff that the shooting was an accident. 5RR52, 55. Holcomb
underwent surgery but died from blood loss at 5:22 a.m. 5RR23, 46-47.
REASONS FOR GRANTING REVIEW
The Court of Appeals opinion conflicts with established precedent by this
Court and has decided an important question of law that needs to be addressed by this
Court. The issue presented is that when a voluntary intoxication instruction is
submitted at the request of the State, must there be an application paragraph
submitted that reminds the jury that the fact that if evidence is presented that an
accused might have been intoxicated, the fact of the intoxication does not negate the
State’s burden to prove that the accused acted with the requisite culpable mental
status required to convict.
In this case, the jury was instructed on voluntary intoxication at the request of
the State, 8RR4, that tracked the language of § 8.04 of the Penal Code:
4 Voluntary intoxication does not constitute a defense to the commission of a crime. Intoxication means disturbance to mental or physical capacity resulting from the introduction of any substance into the body.
Appellant objected to the instruction and requested the following application
paragraph:
Evidence of the defendant’s intoxication, if any, does not negate the elements of intent or knowledge or recklessly or the State’s burden to prove the defendant’s intent, knowledge or recklessness, as those terms has [sic] been defined, beyond a reasonable doubt.
8RR10. The trial court overruled the objection and denied the requested instruction.
8RR9-10. Appellant requested the instruction was based on this Court’s decision in
Sakil v. State, 287 S.W.3d 23 (Tex. Crim. App. 2009).
Appellant argued in the Court of Appeals that the evidence did not warrant the
submission of the instruction because no one contradicted the fact of his intoxication
or claimed his intoxication excused his conduct. The court of appeals concluded that
the instruction is appropriate if evidence from any source that might lead a jury to
conclude that the defendant’s intoxication somehow excused his actions. (Slip
opinion p. 7). The Court of Appeals also concluded that there was no need for an
application paragraph associated with the voluntary intoxication instruction.
As noted by the Court of Appeals, TEX. PENAL CODE ANN. § 8.04 (a) has been
interpreted to mean that evidence of voluntary intoxication “will not excuse a
defendant’s actions,” Taylor v. State, 885 S.W.2d 154, 156 (Tex. Crim. App. 1994),
5 or “rebut a defendant’s mental culpability.” Davis v. State, 313 S.W.3d 317, 329–30
(Tex. Crim. App. 2010). And an accused need not expressly rely upon intoxication
as a defense in order to implicate this provision. Taylor at 158.
In Taylor, this Court did not hold that the instruction is permissible whenever
there is evidence of intoxication; instead, the evidence must be such that a jury could
infer that it excused the conduct. In this case, while not conceding the
appropriateness of the instruction, the submission of the instruction required that the
jury to understand that the instruction did not negate the State’s responsibility to
prove a culpable mental state especially in light of the complainant’s statement that
Appellant’s conduct was an accident.
The trial court’s charge must fully instruct the jury on the law applicable to the
case and apply that law to the facts adduced at trial. Gray v. State, 152 S.W.3d 125,
127 (Tex. Crim. App. 2004); see TEX. CODE CRIM. PROC. ANN. art. 36.14. The
importance of an instruction explaining the application the abstract law to the facts
cannot be overstated. The purpose of the jury charge is to instruct the jury on the law
that applies to the case and to guide the jury in applying the law to the facts of the
case. Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007). Abstract or
definitional paragraphs serve as a kind of glossary to help the jury understand the
meaning of concepts and terms used in the application paragraphs of the charge.
6 Plata v. State, 926 S.W.2d 300, 302 (Tex. Crim. App. 1996), rev’d on other grounds,
Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997). But the application
paragraph is the “heart and soul” of the jury charge. Vasquez v. State, 389 S.W.3d
361, 367 (Tex. Crim. App. 2012). “The application paragraph is what explains to the
jury, in concrete terms, how to apply the law to the facts of the case.” Yzaguirre v.
State, 394 S.W.3d 526, 530 (Tex. Crim. App. 2013). “The jury must be instructed
‘under what circumstances they should convict, or under what circumstances they
should acquit.’” Ex parte Chandler, 719 S.W.2d 602, 606 (Tex. Crim. App. 1986).
Jury charges which fail to apply the law to the facts adduced at trial are erroneous.
Gray v. State, 152 S.W.3d 125, 127–28 (Tex. Crim. App. 2004).
Section 8.04 of the Penal Code provides that “[v]oluntary intoxication is not
a defense to the commission of a crime.” TEX. PENAL CODE ANN. 8.04(a). The statute
has been interpreted as barring the use of evidence of voluntary intoxication to
negate, rebut, or disprove the culpable mental state of a crime. Davis v. State, 313
S.W.3d 317, 329-30 (Tex. Crim. App. 2010); Ramos v. State, 547 S.W.2d 33, 33–34
(Tex. Crim. App. 1977). But evidence of intoxication does not relieve the State of
its burden of proving beyond a reasonable doubt the requisite mental state. Raby v.
State, 970 S.W.2d 1, 5 (Tex. Crim. App. 1998). In Raby, the defendant asserted that
a § 8.04(a) instruction unconstitutionally shifted the burden on the element of
7 criminal intent. Id. Rejecting this argument, the Court clarified that “the State is
required to specifically prove, beyond a reasonable doubt, that a defendant intended
to commit murder, regardless of any state of intoxication.” Id. at 4-5.
The proper application of the provision is described in detail in Sakil, where
the Court rejected the lower court’s conclusion that the instruction created a
mandatory presumption that an intoxicated person has the requisite mental state,
relieving the State of its burden. The Court explained that the State’s burden remains
in place regardless of evidence of intoxication:
If anything, a voluntary-intoxication instruction acts to reaffirm the mental-state requirements, not delete them. “[E]vidence of [an] appellant’s intoxication, if any, does not negate the elements of intent or knowledge”; and, therefore, when the evidence suggests that a defendant acted under the influence of a substance, the instruction operates to inform the jury that the elements of the offense, including the requisite mental state, are not affected by any evidence of intoxication. In this case, the instruction prevented evidence of Appellant’s possible intoxication from altering the jury’s understanding of the crime with which he was charged: “intentionally, knowingly, or recklessly” causing “bodily injury to another.”
Sakil, 287 S.W.3d at 28 (internal citations omitted). Accordingly, proper
application of § 8.04 (a) requires the jury to understand that evidence of intoxication
may not serve to negate the mental state elements, but the State must prove the
requisite mental state beyond a reasonable doubt, regardless of evidence of
intoxication. Id. Appellant’s requested instruction was derived from Sakil’s
8 articulation of the proper application of § 8.04(a).
Simply instructing the jury that voluntary intoxication “does not constitute a
defense to the commission of a crime” does not inform the jury of the interplay
between evidence of intoxication and the State’s burden on the requisite mental state.
For this reason, the State Bar of Texas Committee on Pattern Jury Charges has
included an explanatory application instruction in its criminal pattern jury charge:
Voluntary intoxication is not a defense to the commission of a crime.
But you are reminded that the state must prove all elements of the offense beyond a reasonable doubt.
See Comm. on Pattern Jury Charges, State Bar of Tex., Texas Criminal Pattern
Jury Charges: Defenses § B6.3 (2013).
Moreover, the Sakil Court’s suggestion that the statutory language suffices to
convey to the jury the proper application of the abstract law is wholly incongruous
with its analysis. The Court’s explanation of the application of the law in relation to
the State’s burden on mental state necessitated an entire paragraph, and yet the Court
suggests that a jury of lay persons will infer all of the content of its explanation by
simply being informed that voluntary intoxication is “not a defense.”
The error in this case is even more pervasive because it implicated the legal
validity of the entire defense case. The language “voluntary intoxication is not a
defense to the commission of a crime” has acquired an established legal meaning, and
9 is subject to misapplication if given a broad meaning used in common parlance. The
statutory language does nothing to explain to the jury in concrete terms how evidence
of voluntary intoxication impacts its evaluation of the State’s case, and implies that
there was no viable defense if Appellant was voluntarily intoxicated at the time of the
alleged offense. The trial court erred in failing to submit Appellant’s requested
instruction, or some portion thereof, explaining that the “not a defense” language did
not negate the State’s burden of proving each element of the offense beyond a
reasonable doubt.
Because Appellant preserved his complaint, the Court must reverse if the error
resulted in any harm, regardless of degree. Almanza v. State, 686 S.W.2d 157, 161
(Tex. Cr. App. 1984); Druery v. State, 225 S.W.3d 491, 504 (Tex. Crim. App. 2007).
The Almanza factors, set out above in Part A, favor a finding of harm.
With regard to the jury charge as a whole, the charge included an instruction
stating that the State has the burden of proving each element beyond a reasonable
doubt. CR68. But this instruction appeared several pages after the voluntary
intoxication instruction, in the boilerplate section of the charge. The voluntary
intoxication instruction immediately preceded the application paragraphs for murder,
manslaughter, and deadly conduct (CR65-67), making it more likely that the jury was
drawn to the voluntary intoxication instruction deciding whether to convict. See
10 Reeves v. State, 420 S.W.3d 812, 819 (Tex. Crim. App. 2013) (physical location of
erroneous instruction is a factor in evaluating harm).
Moreover, the boilerplate instruction on the State’s burden of proof was not
sufficient to explain the interplay between evidence of intoxication and the State’s
burden of proof. The jury was authorized to apply a broad interpretation of the term
“defense” which would permit it to find that any conduct engaged in while
intoxicated was legally indefensible, regardless of whether the defendant had the
requisite mental state. Because the § 8.04(a) instruction was the only instruction
relating to defenses, and no instruction concerning “accident” was required, the
charge as a whole created a risk that the jury would conflate Appellant’s defense of
accident with the evidence of intoxication and find that the instruction foreclosed a
finding that the shooting was accidental. Moreover, the only way the jury could give
effect to the defense of accident was through its evaluation of proof of the requisite
mental state. In the absence of an instruction correctly informing the jury that the §
8.04(a) instruction did not negate the State’s burden to prove a culpable mental state,
the jury could not give effect to the evidence that the shooting was accidental.
The State took advantage of the instruction by repeatedly mentioning
Appellant’s intoxication in relation to the shooting during closing arguments.
8RR18-20. Additionally, the State’s voir dire implied that simply handling a gun
11 while intoxicated is enough to create criminal responsibility for any ensuing conduct,
unless “somebody drugged you against your will”. 2RR47-50. In the context of
explaining that intoxication was not a defense, the State questioned the panel about
whether guns and alcohol “don’t mix, period” or “you just shouldn’t do it” and
elicited agreement from numerous panel members. 2RR48-50.
Thus, this Court should grant discretionary review to determine if an
application is required to explain the interplay between a § 8.04 instructions and the
State’s burden of proof.
PRAYER
WHEREFORE PREMISES CONSIDERED, Appellant prays that this grant
discretionary review, reverse the decision of the Court of Appeals and remand the
cause to the trial court for a new trial.
Respectfully Submitted,
SCHNEIDER & McKINNEY, P.C.
/s/ STANLEY G. SCHNEIDER STANLEY G. SCHNEIDER T.B.C. No. 17790500 440 Louisiana St., Suite 800 Houston, Texas 77002 Office: (713) 951-9994 Fax: (713) 224-6008 Email: stans3112@aol.com
ATTORNEY FOR APPELLANT
12 CERTIFICATE OF SERVICE
Pursuant to TEX. R. APP. P. 9.5, a copy of this document has been served to
the following attorneys for the State and the State Prosecuting Attorney by electronic
service, as required by TEX. R. APP. P. 68.11, on December 16, 2015:
• Jack Roady – jack.roady@co.galveston.tx.us Galveston County District Attorney
• Lisa C. McMinn – information@spa.texas.gov State Prosecuting Attorney
/s/ STANLEY G. SCHNEIDER STANLEY G. SCHNEIDER
CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R. APP. P. 9.4(i)(3), I certify that the above brief was
computer generated and contains 2,735 words excluding those portions set out in
TEX. R. APP. P. 9.4(1)(1).
13 APPENDIX A Court of Appeals’ Opinion
14 Opinion issued October 15, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-14-00536-CR ——————————— DENNIS ROY REDDING, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 212th District Court Galveston County, Texas Trial Court Case No. 12-CR-2363
MEMORANDUM OPINION
Appellant Dennis Roy Redding was indicted for the first degree felony
offense of murder and was convicted of the lesser included offense of
manslaughter. Redding raises three issues on appeal. First, he contends that the
trial court erred by submitting a voluntary intoxication instruction pursuant to Penal Code section 8.04(a) because he did not rely on voluntary intoxication as a
defense. Second, he contends that the trial court erred by failing to include
Redding’s proposed application paragraph. Finally, Redding asserts that the trial
court erred in overruling his objections to the State’s comments during closing
argument in which the prosecutor allegedly told the jury that to be convicted of
murder, Redding merely had to intend to engage in conduct rather than intend a
result. Finding no error, we affirm.
Background
Redding and Mark Holcomb, the complainant, were longtime friends who
met when their daughters were in elementary school, then became closer when
Redding’s wife, Joan, went to work for Holcomb. On June 22, 2012, Redding and
his son-in-law, Darren Schieffer, joined Holcomb and his wife Francine at the
Holcombs’ waterfront home for the weekend. The Holcombs’ daughter Ashley,
Ashley’s husband Jonathan (John) Contois, and John’s brother Dan Contois were
also there.
Holcomb and Redding began drinking sometime before 5:00 p.m. They
continued to drink outside while dinner was being prepared. The group, except
Redding, ate dinner around 8:00 p.m. After dinner, everyone gathered outside and
continued socializing and drinking. Holcomb and Redding remained as the rest of
the group gradually dispersed to go to bed.
2 Around 9:30 p.m., neighbors Gert Rhodes, David Baggs, and Jeff Dolen
joined Holcomb and Redding, and Francine came back downstairs. The group
continued to drink and socialize until sometime after midnight. Then, with the
help of Rhodes and Baggs, Holcomb assisted Redding upstairs to bed.
Once upstairs, Holcomb stood in the doorway as Redding entered the
bedroom where Darren was already sleeping. Redding stumbled, falling into the
wall. He then pulled his bag out and began to rummage through it. Holcomb
turned on the light and asked Redding what he was looking for. Darren awakened
and sat up, and Redding yelled at Holcomb to “turn the fucking light off.”
Redding then walked toward the doorway pointing his handgun at Holcomb while
saying, “you mother fuckers are treating me like a baby.” As Redding approached
Holcomb, Redding fired the gun. Holcomb grabbed his stomach and fell to the
floor saying, “Dennis you shot me.”
Darren ran to where John had been sleeping on the couch and told him that
Redding shot Holcomb. John ran into the bedroom to subdue Redding while
Darren called 911. Family members and guests then converged on the scene, and
Holcomb was holding his side and saying, “Call 911, he shot me”; “it was an
accident”; and “he didn’t mean to do it.” Darren and John restrained Redding and
found the gun in Redding’s left pocket. They overheard Redding saying, “Let me
up. It was an accident, let me up.” While awaiting EMS, Holcomb again told
3 Francine “it was an accident.” Both the EMS and police arrived and Holcomb was
taken by life flight to the UTMB. Holcomb underwent surgery, but died from
blood loss early that morning.
At trial, Darren testified that Redding told him that he never meant to kill
Holcomb, but that he was just trying to scare Holcomb by shining the gun’s laser
on him. Redding believed the laser was trigger-activated, but, in fact, the gun had
a button on the grip to activate the laser. Darren testified he is familiar with guns
and does not know of any gun that has a trigger-activated laser.
Trial testimony also revealed that Redding was familiar with firearms.
Redding was a former Houston police officer and was previously the head of
security at NASA. Redding also hunted regularly, was a concealed handgun
license holder, practiced shooting at a gun range, and typically carried a gun with
him.
The jury charge during the guilt-innocence phase of trial included
instructions on murder and two lesser included offenses: manslaughter and deadly
conduct. Over Redding’s objection, the trial court submitted the following
instruction on voluntary intoxication, which tracked Texas Penal Code § 8.04(a)
and (d):
Voluntary intoxication does not constitute a defense to the commission of a crime.
4 Intoxication means disturbance of mental or physical capacity resulting from the introduction of any substance into the body.
The trial court also refused Redding’s proposed application paragraph which he
contended was needed to inform the jury that a finding of voluntary intoxication by
the defendant does not negate the State’s burden to prove all elements of the
offense.
The jury convicted Redding of the lesser included offense of manslaughter,
found the deadly weapon special instruction true, and sentenced Redding to seven
years’ confinement in the Institutional Division of the Texas Department of
Criminal Justice.
Jury Charge
Redding argues that the trial court’s charge contained two errors. In his first
issue, he argues that the trial court erroneously instructed the jury on voluntary
intoxication. In his second issue, he argues that the trial court erred in failing to
include an application paragraph with the voluntary intoxication instruction. He
asserts that he preserved these errors, and they caused some harm, warranting
reversal.
A. Standard of Review
In analyzing a jury-charge issue, our first duty is to decide if error exists.
See Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh’g);
Tottenham v. State, 285 S.W.3d 19, 30 (Tex. App.—Houston [1st Dist.] 2009, pet.
5 ref’d). Only if we find error do we then consider whether an objection to the
charge was made and analyze for harm. Tottenham, 285 S.W.3d at 30; see also
Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008) (“The failure to
preserve jury-charge error is not a bar to appellate review, but rather it establishes
the degree of harm necessary for reversal.”).
“The degree of harm necessary for reversal depends upon whether the error
was preserved.” Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).
Error properly preserved by a timely objection to the charge will require reversal
“as long as the error is not harmless.” Almanza, 686 S.W.2d at 171. The Court of
Criminal Appeals has interpreted this to mean that any harm, regardless of degree,
is sufficient to require reversal. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim.
App. 1986). However, when the charging error is not preserved “and the accused
must claim that the error was ‘fundamental,’ he will obtain a reversal only if the
error is so egregious and created such harm that he ‘has not had a fair and impartial
trial’—in short ‘egregious harm.’” Almanza, 686 S.W.2d at 171.
B. Applicable Law
An instruction on voluntary intoxication informs the jury that the elements
of the offense—including the requisite mental state—are not affected or altered by
evidence of intoxication. Sakil v. State, 287 S.W.3d 23, 28 (Tex. Crim. App.
2009). The Court of Criminal Appeals has held that a voluntary intoxication
6 instruction is appropriate if evidence from any source might lead a jury to conclude
that the defendant’s intoxication somehow excused his actions. Taylor v. State,
885 S.W.2d 154, 158 (Tex. Crim. App. 1994). The Court has expressly rejected
the argument that such an instruction relieves the State of its burden of proving
intent, Sakil, 287 S.W.3d at 28, noting that, if anything, the instruction acts to
reaffirm the mental state requirements, not delete them. Id.
C. Analysis
1. Voluntary intoxication instruction
In his first point of error, Redding asserts that the trial court erred by
instructing the jury on voluntary intoxication at the State’s request. Specifically,
Redding maintains that the instruction was not warranted because there was neither
evidence nor argument that his intoxication was not voluntary or that it caused or
excused his conduct.
Under Almanza, our first duty is to determine whether there was error in the
charge. We conclude that there was not. In Taylor, the Court stated that a section
8.04(a) instruction is appropriate if evidence from any source might lead a jury to
conclude that the defendant’s intoxication somehow excused his actions. Taylor,
885 S.W.2d at 158; see also Fisher v. State, 397 S.W.3d 740, 746–47 (Tex. App.—
Houston [14th Dist.] 2013, pet. ref’d) (voluntary intoxication instruction
appropriate where equivocal testimony might have led jury to conclude that
7 voluntary intoxication excused appellant’s actions). The instruction may be
appropriate even if the defense does not argue that intoxication somehow excused
an accused’s conduct and even if evidence of intoxication is itself equivocal. Sakil,
287 S.W.3d at 27–28.
In Sakil, the defendant elicited testimony from his own witness regarding
defendant’s history of drug abuse, and that history was suggested to have some
link to the appellant’s symptoms on the date of the offense. Id. at 27. Despite the
complainant telling emergency dispatchers the defendant was not intoxicated at the
time of the offense, the trial court concluded that testimony on defendant’s history
of drug use alone increased the possibility the jury would infer a cause-and-effect
relationship between defendant’s history of drug use and the offense conduct. Id.
The Court of Criminal Appeals explained that although the evidence did not
establish that the appellant was intoxicated at the time of the offense, there was
some evidence from which a juror could conclude that voluntary intoxication
excused appellant’s actions. Id. Thus, a voluntary intoxication instruction was
appropriate as it “properly utilized the charge’s function to actively prevent
confusion.” Id. at 28.
This case is similar. Here, there was considerable evidence of Redding’s
intoxication. Francine testified that Redding and Holcomb had a longstanding
history of drinking heavily together while on vacation. John described Redding as
8 “pretty drunk” at dinnertime, around 8:00 p.m., and Francine testified that Redding
continued to drink downstairs for a few hours and was very intoxicated. Darren
recalled that appellant was “drunk … stumbling everywhere” when appellant came
upstairs right before the shooting. The uncontroverted testimony provided
evidence from which a juror could conclude that intoxication excused Redding’s
actions. Accordingly, the trial court did not err in including a voluntary
intoxication instruction. Taylor, 885 S.W.2d at 158 (voluntary intoxication
instruction appropriate where evidence from any source might lead jury to
conclude that defendant’s intoxication somehow excused his actions even if
defendant has not explicitly argued intoxication as a defense); Sakil, 287 S.W.3d at
26–28 (voluntary intoxication instruction appropriate even if evidence of
intoxication is equivocal in order to actively prevent confusion).
We overrule appellant’s first issue.
2. Omission of application paragraph
In his second point of error, Redding contends that the trial court erred in
refusing an application paragraph regarding voluntary intoxication. Specifically,
Redding argues that the voluntary intoxication instruction could have misled the
jury into thinking that Redding was strictly liable if the jury found voluntary
intoxication.
Redding asked the trial court to include the following application paragraph:
9 Evidence of the defendant’s intoxication, if any, does not negate the elements of intent or knowledge or recklessly or the State’s burden to prove the defendant’s intent, knowledge or recklessness as those terms has [sic] been defined beyond a reasonable doubt.
We conclude that the trial court did not err in refusing to submit the
proposed application paragraph. We read Sakil and other authorities to mean that a
trial court does not err in failing to submit an application paragraph with a
voluntary intoxication instruction. See, e.g., Taylor, 885 S.W.2d at 158 (abstract
voluntary intoxication instruction without a related application instruction not
noted as error where charge indicated burden of production remained with the
State); Sakil, 287 S.W.3d at 28 (concluding that abstract voluntary intoxication
instruction “operates to inform the jury that the elements of the offense, including
the requisite mental state, are not affected by any evidence of intoxication” (citing
Hawkins v. State, 605 S.W.2d 586, 589 (Tex. Crim. App. 1980))); Hughes v. State,
No. 01-11-00282-CR, 2012 WL 2923180, *4 (Tex. App.—Houston [1st Dist.] July
12, 2012, pet. ref’d) (mem. op., not designated for publication) (abstract voluntary
intoxication instruction without a related application instruction operated to
prevent juror confusion and was not noted as error). “If anything, a voluntary-
intoxication instruction acts to reaffirm the mental-state requirements, not delete
them. . . . [T]he instruction operates to inform the jury that the elements of the
offense, including the requisite mental state, are not affected by any evidence of
10 intoxication.” Sakil, 287 S.W.3d at 28 (citing Hawkins, 605 S.W.2d at 589); see
also Raby v. State, 970 S.W.2d 1, 5 (Tex. Crim. App. 1998) (concluding that a
section 8.04(a) instruction suffers no constitutional infirmity and does not
improperly benefit the State by shifting the burden on the requisite element of
criminal intent).
Here, the charge instructed the jury that the State maintained its burden of
proving the required mental state beyond a reasonable doubt. The general
instructions stated: “[a]ll persons are presumed to be innocent and no person may
be convicted of an offense unless each element of the offense is proved beyond a
reasonable doubt.” The next paragraph reinforced the idea that the State bore the
burden of production on each and every element: “[t]he prosecution has the burden
of proving the Defendant guilty and it must do so by proving each and every
element of the offense charged beyond a reasonable doubt and if it fails to do so,
you must acquit the Defendant.” Thus, the charge included the substance of the
proposed application paragraph that Redding argues should have been submitted,
albeit not immediately after the voluntary intoxication instruction as Redding
wished. See Comm. on Pattern Jury Charges, State Bar of Tex., Texas Criminal
Pattern Jury Charges: Defenses § B6.3 (2013) (suggesting voluntary intoxication
instruction tracking Penal Code section 8.04(a) be accompanied by an instruction
11 that “you are reminded that the state must prove all elements of the offense beyond
a reasonable doubt.”).
We conclude that the charge adequately informed the jury that the State
retained the burden to prove all elements beyond a reasonable doubt. Accordingly,
the trial court did not abuse its discretion in refusing Redding’s proposed
application paragraph.
We overrule appellant’s second issue.
Closing Arguments
In his third issue, Redding argues that the trial court erred in overruling his
objections to the State’s closing arguments, which he maintains incorrectly led the
jury to believe that murder was a nature of conduct rather than result of conduct
A trial court’s ruling on an objection to improper jury argument is reviewed
for abuse of discretion. Rodriguez v. State, 446 S.W.3d 520, 536 (Tex. App.—San
Antonio 2014, no pet.). Prosecutorial misstatements of law are improper, but they
are not constitutional in nature, and are governed by the harm analysis set out in
Texas Rule of Appellate Procedure 44.2(b). Mosley v. State, 983 S.W.2d 249, 259
(Tex. Crim. App. 1998). Nonconstitutional errors are disregarded unless
appellant’s substantial rights are affected. Herrera v. State, 11 S.W.3d 412, 415
12 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). A substantial right is affected
when error has a substantial and injurious effect or influence on the jury’s verdict.
King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).
To determine whether the prosecutor’s misstatement of the law in closing
argument to the jury had a substantial and injurious effect, a reviewing court must
look at all the evidence and the court’s charge. Herrera, 11 S.W.3d at 415. The
court does not consider only isolated statements when reviewing for error.
Rodriguez v. State, 90 S.W.3d 340, 364 (Tex. App.—El Paso 2001, pet. ref’d).
To be permissible, the State’s jury argument must fall within one of the
following four general areas: (1) summation of the evidence; (2) reasonable
deduction from the evidence; (3) answer to argument of opposing counsel; or
(4) plea for law enforcement. Davis v. State, 329 S.W.3d 798, 821 (Tex. Crim.
App. 2010). When an argument exceeds the permissible bounds, it does not
constitute reversible error unless, in light of the record as a whole, the argument is
extreme or manifestly improper, violative of a mandatory statue, or injects new
facts harmful to the accused into the trial proceeding. Todd v. State, 598 S.W.2d
286, 296–97 (Tex. Crim. App. [Panel Op.] 1980) (first citing Kerns v. State, 550
S.W.2d 91 (Tex. Crim. App. 1977); then citing Thompson v. State, 480 S.W.2d 624
(Tex. Crim. App. 1972)).
13 C. Analysis
Redding contends that portions of the State’s closing argument misstated the
law by improperly directing the jury to focus on Redding’s “acts” on the night of
the shooting. In particular, during closing argument, the prosecutor told the jury:
The issue for you, ladies and gentlemen, is has the State proven murder? Has the State proved intentionally or knowingly acts? What I want you to focus on are the acts.
Redding objected, “That’s a misstatement of the law. It’s intentionally or
knowingly cause the result, not that he engaged in conduct.” The trial court
overruled Redding’s objection.
The prosecutor continued, later arguing:
When you focus on the actions of the defendant in this case from walking up to that bedroom, rummaging around in the bag, taking the gun out of the holster, his gun, the gun he’s familiar with, the retired police officer with the CHL, his gun and he pulls the trigger after taking several steps forward, those are all, ladies and gentlemen, intentional, knowing, those are purposeful actions.
Redding objected:
Your Honor, I object. The jury charge says the conduct that caused the result, not that he engaged in conduct. That’s not part of the intentional and knowing. It’s a misstatement of the law that applies to this case by saying if you find he engaged in conduct. That’s not the law.
The trial court again overruled the objection.
Even assuming the arguments complained of were improper and that the trial
court erred in overruling the objections, we find no substantial or injurious effect
14 or influence. TEX. R. APP. P. 44.2(b). Determining harm under the standard for
nonconstitutional error in improper argument cases requires balancing the
following three factors: (1) severity of the misconduct (prejudicial effect);
(2) curative measures (the efficacy of any cautionary instruction by the judge); and
(3) the certainty of the conviction absent the misconduct (the strength of the
evidence supporting the conviction). Mosley, 983 S.W.2d at 259 (first citing
United States v. Millar, 79 F.3d 338, 343 (2nd Cir. 1996); then citing United States
v. Palmer, 37 F.3d 1080, 1085 (5th Cir. 1994)).
First, considering the severity of the misconduct, we conclude that the
State’s comments were not manifestly improper. Consideration of the State’s
entire closing argument shows that the State was properly asking the jury to
evaluate Redding’s intent by focusing on his actions that night. Notwithstanding
the fact that murder is a result of conduct offense, a fact finder may infer that a
particular result was intended based on a defendant’s acts. See Brown v. State, 122
S.W.3d 794, 800 (Tex. Crim. App. 2003) (explaining that while intent to kill
cannot be inferred as a matter of law, a jury may infer intent based on any facts in
evidence which it determines prove the existence of an intent to kill); Ex parte
Weinstein, 421 S.W.3d 656, 668 (Tex. Crim. App. 2014) (explaining that intent to
commit murder may be inferred from circumstantial evidence, including the
accused’s acts and words); Holiday v. State, 14 S.W.3d 784, 789–90 (Tex. App.—
15 Houston [1st Dist.] 2000, pet. ref’d) (factfinder may infer intent to kill from the use
of a deadly weapon). The arguments did not invite speculation, Thompson v. State,
89 S.W.3d 843, 850–51 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d)
(argument inviting speculation clearly improper and amounted to constitutional
error), did not inject new facts into the record, Everett v. State, 707 S.W.2d 638,
641 (Tex. Crim. App. 1986) (prosecutor may not use closing argument to place
matters outside the record before the jury), and did not cast aspersion on defense
counsel’s veracity, Cole v. State, 194 S.W.3d 538, 544 (Tex. App.—Houston [1st
Dist.] 2006, pet. ref’d) (comments impugning defense counsel’s veracity in closing
arguments may constitute reversible error). Instead, the arguments complained of
permissibly encouraged reasonable deductions from the evidence. Additionally,
the jury concluded that Redding did not intentionally or knowingly cause
Holcomb’s death. Instead, the jury found Redding guilty of the lesser-included
offense of manslaughter, requiring only recklessness. In light of the verdict, we
conclude that any misstatement in closing arguments did not improperly cause the
jury to infer an intent to kill.
Second, the trial court gave no oral curative instruction, but the charge
correctly stated the law regarding the mens rea applicable to each offense
submitted. Third, absent jury nullification, conviction on the manslaughter charge
was almost certain, because the uncontroverted evidence showed that Redding
16 pointed a firearm at Holcomb and the charge instructed the jury to presume
recklessness if Redding knowingly did so. Additionally, a seven year sentence is
at the lower end of the range of punishment the jury considered. In short, although
there was no curative instruction, the benign nature of the objected to statements,
together with the strength of the State’s manslaughter case, lead us to conclude that
any error in overruling Redding’s objections to the State’s closing argument does
not warrant reversal. Mosley, 983 S.W.2d at 259–60; see also Schultze v. State,
177 S.W.3d 26, 44–50 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (though
prosecutor’s argument improperly invoked matters outside record and no curative
measures were taken, there was no harm given relatively minimal degree of
misconduct and certainty of conviction).
We overrule appellant’s third issue.
Conclusion
We affirm the trial court’s judgment.
Rebeca Huddle Justice
Panel consists of Chief Justice Radack, Justice Bland, and Justice Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).