
In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-06-233 CR

____________________


ELTON LARRIE STAFFORD, Appellant


V.


THE STATE OF TEXAS, Appellee




On Appeal from the 356th District Court
Hardin County, Texas

Trial Cause No. 17552




OPINION
 A jury convicted Elton Larrie Stafford of murdering his wife of thirty-one years,
Marygene, by striking her "in the head with a stone."  The jury further assessed Stafford's
punishment at confinement in the Texas Department of Criminal Justice, Correctional
Institutions Division, for a term of seventy-five years, and fined Stafford in the amount of
$10,000.  In this direct appeal, Stafford presents five issues for our consideration.  Issues four
and five contest the presence of legally sufficient evidence in the record to sustain Stafford's
murder conviction.  We must consider these two issues at the outset as a successful legal
sufficiency challenge will result in rendition of an acquittal by the reviewing court rather than
a remand to the trial court.  See Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S.Ct. 2211, 72
L.Ed.2d 652 (1982); Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996).  
	Under issues four and five, which we consider together, Stafford points out that he
was charged with murdering Marygene by striking her head with a stone, while the State's
only evidence, from its blood spatter expert, was to the effect that Marygene's head was
struck against the stone.  As alleged by Stafford, "[t]he state wholly failed to adduce any
testimony which demonstrated the actus reus as indicted."  Stafford directs us to Jackson v.
Virginia, (1) and Malik v. State (2) as setting out the appropriate appellate standard for reviewing
his legal sufficiency challenge.  Under the facts contained in the record, however, Stafford's
argument is misguided.
	In Texas criminal jurisprudence, the concept of "legal sufficiency" of the evidence is
based upon the law of due process.  See Gollihar v. State, 46 S.W.3d 243, 245 (Tex. Crim.
App. 2001).  The Supreme Court in In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25
L.Ed.2d 368 (1970) expressed it as follows:  "[W]e explicitly hold that the Due Process
Clause protects the accused against conviction except upon proof beyond a reasonable doubt
of every fact necessary to constitute the crime with which he is charged."  This holding was
given practical applicability in Jackson v. Virginia, which established a standard of appellate
review that would ensure all criminal convictions satisfied at least the due process minimum
announced in Winship.  See Jackson, 433 U.S. at 319 n.12. (3)  As we appreciate his argument,
Stafford is not contending the State failed to proved that he intentionally or knowingly
caused the death of Marygene; but instead, Stafford contends the State's proof as to how
Stafford caused Marygene's death did not match how the State alleged Stafford caused
Marygene's death as set out in the indictment.  This is otherwise referred to as a "variance."
	"A 'variance' occurs when there is a discrepancy between the allegations in the
charging instrument and the proof at trial.  In a variance situation, the State has proven the
defendant guilty of a crime, but has proven its commission in a manner that varies from the
allegations in the charging instrument."  Gollihar, 46 S.W.3d at 246 (citing 42 George E.
Dix & Robert O. Dawson, Texas Practice:  Criminal Practice and Procedure §
31.81 at 178 (1995)).  While some jurisdictions treat variance claims as a notice-related issue,
the Court in Gollihar reaffirmed its traditional stance in treating variance claims as a problem
with the legal sufficiency of the evidence.  See Gollihar, 46 S.W.3d at 247 n.6, 256.  Under
either treatment, however, the general rule is that a variance that is not prejudicial to a
defendant's substantial rights is immaterial.  See id. at 247-48.  Whether a defendant's
substantial rights have been prejudiced by a variance between the indictment and the
evidence at trial typically depends upon the answers to two inquiries:  1) whether the
indictment, as written, informed the defendant of the charge against him sufficiently to allow
him to prepare an adequate defense at trial, and 2) whether prosecution under the purportedly
deficient indictment would subject the defendant to the risk of being prosecuted later for the
same crime.  See id. at 248.  A "material variance," also known as a "fatal variance," is not
shown unless it is such as might mislead the defense, or might expose the defendant to the
danger of being put twice in jeopardy for the same offense.  See id. at 257 n.23.  
	When arguing variance, the burden of demonstrating surprise or prejudice rests with
the defendant.  Santana v. State, 59 S.W.3d 187, 194 (Tex. Crim. App. 2001).  In the instant
case, Stafford simply argues the State's proof reversed the manner and means pleaded, i.e.,
the State proved Marygene's death was caused by her head being struck upon a stone, but it
pleaded that Marygene's death was caused by Stafford striking her in the head with the stone. 
Stafford does not contend that the indictment language led to an inability to defend against
the murder charge, nor does he indicate how this alleged variance could subject him to the
risk of later being prosecuted for the same offense.  Under the facts and circumstances
presented in the record, we find that any variance between the pleadings and the proof at trial
was not prejudicial to Stafford's substantial rights and was, therefore, immaterial. (4) 
	To sustain Stafford's conviction, the jury must only have unanimously found Stafford
guilty of the actus reus - "intentionally or knowingly caus[ing] the death of . . . Marygene
Stafford[.]"  The way in which Stafford caused Marygene's death -- by striking her in the
head with a stone, or by striking her head onto a stone -- is immaterial to a legal
sufficiency/due process analysis as these allegations are merely "manner and means" and not
essential elements of the offense that must be unanimously found by the jury.  See Pizzo v.
State, 235 S.W.3d 711, 713 (Tex. Crim. App.  2007).
	In her concurring opinion in Jefferson v. State, 189 S.W.3d 305, 314-16 (Tex. Crim.
App. 2006)(Cochran, J., concurring), and later adopted by a majority of the Court in Stuhler
v. State, 218 S.W.3d 706, 717-19 (Tex. Crim. App. 2007), Judge Cochran provided a rule of
thumb for determining what the actus reus is, i.e., forbidden conduct the jury must be
unanimous about, and what is "the mere means of satisfying the actus reus element of an
offense[.]"  See Schad v. Arizona, 501 U.S. 624, 632, 111 S.Ct. 2491, 115 L.Ed.2d 555
(1991).  Her analysis reads as follows:  
	In sum, we must return to eighth-grade grammar to determine what elements
the jury must unanimously find beyond a reasonable doubt.  At a minimum,
these are:  the subject (the defendant); the main verb; and the direct object if
the main verb requires a direct object (i.e., the offense is a result-oriented
crime); and the specific occasion (the date phrase within the indictment, but
narrowed down to one specific incident regardless of the date alleged. 
Generally, adverbial phrases, introduced by the preposition "by," describe the
manner and means of committing the offense.  They are not the gravamen of
the offense, nor elements on which the jury must be unanimous.

Jefferson, 189 S.W.3d at 315-16 (Cochran, J., concurring) (emphasis added) (footnote
omitted).
	In the instant case, the indictment language "by striking Marygene Stafford in the head
with a stone" is not the actus reus of murder but merely the manner and means of committing
the offense, a determination which does not require jury unanimity.  Id.  From the entire
discussion set out above, we conclude the evidence was legally sufficient to sustain
Stafford's murder conviction, and we find no abuse of discretion by the trial court in denying
Stafford's motion for instructed verdict.  Issues four and five are overruled.
	Issue one complains of the admission of State's Exhibit No. 16, an envelope
containing a single form for creating a simple will; a set of Texas divorce forms apparently
photocopied from a self-help publication; correspondence purportedly in the handwriting of
the victim, Marygene Stafford, and two cash-register receipts depicting purchases made by
Stafford on the day of the murder.  At trial, Stafford objected to admission of the divorce and
will forms and to the handwritten correspondence on the grounds of hearsay, relevance, and
on the fact that the State had not authenticated the correspondence as being written by
Marygene.  A brief hearing was conducted out of the jury's presence with the trial court
ultimately overruling each of Stafford's objections.   
	An appellate court may not disturb a trial court's evidentiary ruling absent an abuse
of discretion.  Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007).  As long
as the trial court's ruling is within the zone of reasonable disagreement and is correct under
any theory of law applicable to the case, it must be upheld.  Id. (citing Montgomery v. State,
810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g)).    
	"'Hearsay' is a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted."  Tex. R. Evid.
801(d).  A "statement" includes an oral or written verbal expression.  Id. at 801(a)(1).  An
out-of-court statement which is not offered to prove the truth of the matter asserted therein,
but is offered for some other reason, is not hearsay.  See Guidry v. State, 9 S.W.3d 133, 152
(Tex. Crim. App. 1999); Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995);
Jones v. State, 843 S.W.2d 487, 499 (Tex. Crim. App. 1992), overruled on other grounds,
48 S.W.3d 196, 200 (Tex. Crim. App. 2001).
	In Guidry, a murder-for-hire trial, the State offered into evidence, over Guidry's
hearsay objection, a detective's testimony that the name and telephone number of a co-conspirator's girlfriend were listed in an address-book belonging to a third co-conspirator,
the victim's estranged husband.  See Guidry, 9 S.W.3d at 152.  The Court of Criminal
Appeals held the detective's testimony was not offered for the purpose of proving the
telephone number actually belonged to the girlfriend, but was offered as circumstantial
evidence of the link between the girl's co-conspirator boyfriend and the victim's husband,
a conspiracy which the State ultimately tied to Guidry.  Id. 
	In Dinkins, also a capital murder prosecution, the State offered into evidence a patient
application form and an appointment book listing Dinkins' name and a name similar to
Dinkins', respectively.  See Dinkins, 894 S.W.2d at 347.  The Court of Criminal Appeals held
the evidence not hearsay, finding the two exhibits were tendered by the State to show how
Dinkins became a suspect in the murder investigation.  Id.  Thus, the patient application form
and the appointment book were not hearsay.  Id. 
	In the instant case, testimony indicated that the Texas divorce forms were recovered
from the back-seat area of a vehicle Stafford identified as one operated primarily by him, and
the will form was found on a scanner during the dismantling of a computer located in
Stafford's personal computer room.  The handwritten correspondence was located in
Marygene's "computer room."  We find that neither the will form nor the divorce forms were
offered by the State at trial in an attempt to prove the truth of any matters asserted therein. 
The probative value of the divorce documents was as circumstantial evidence of the
deteriorated condition of the Staffords' marriage at the time of the murder.  Even if the will
form on the scanner was not probative of a plan, we fail to see how admission of the
document was harmful error requiring reversal.  Tex. R. App. P. 44.2.  As for the written
correspondence, it was admissible over Stafford's hearsay objection as an exception under
Tex. R. Evid. 803(3) relating to Marygene's "then existing state of mind, emotion, sensation,
or physical condition[,]" so long as the handwriting was properly authenticated by the State
as belonging to Marygene.  See Tex. R. Evid. 901(a) (Authentication "is satisfied by
evidence sufficient to support a finding that the matter in question is what its proponent
claims."); Angleton v. State, 971 S.W.2d 65, 67 (Tex. Crim. App. 1998).  Handwriting may
be properly authenticated by way of non-expert opinion testimony as to its genuineness based
upon the non-expert's familiarity of the handwriting acquired independently of the litigation. 
See Tex. R. Evid. 901(b)(2). 
	With regard to admitting evidence having questionable authenticity, the rules of
evidence provide that preliminary questions concerning the admissibility of evidence shall
be determined by the trial court, and when the relevancy of evidence depends upon the
fulfillment of a condition of fact, the trial court shall admit the evidence upon, or subject to,
the introduction of evidence sufficient to support a finding of the fulfillment of the condition. 
See Tex. R. Evid. 104(a), (b).  Whether a conditional fact, such as authentication, has been
proven by the proponent of the evidence is a question for the jury, with the trial court's role
limited to a threshold determination of whether sufficient evidence has been presented to
support such a finding.  See Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App.), cert.
denied, 128 S.Ct. 627, 169 L.Ed.2d 404 (2007).  "In other words, the trial judge should admit
evidence that is relevant based upon a conditional fact only if there is sufficient evidence to
support a jury finding that the conditional fact is true."  Id.  The Court in Druery further
discussed the authentication process thusly:
	This authentication requirement can be satisfied by showing "Distinctive
characteristics and the like:  Appearance, contents, substance, internal patterns,
or other distinctive characteristics, taken in conjunction with circumstances." 
The trial judge does not abuse his or her discretion in admitting evidence
where he or she reasonably believes that a reasonable juror could find that the
evidence has been authenticated or identified.

Druery, 225 S.W.3d at 502 (footnotes omitted).  
	In the instant case, two of the three handwritten letters begin with either "Stafford,"
or "to Stafford," and close with either "jeanie," or "love jeanie s."  All three letters have the
common theme of extreme disappointment, frustration, and sadness on the part of the writer
with the state of her marriage.  These letters were found in Marygene's "computer room"
during the execution of a search warrant at the Stafford residence two days following the
murder.  The State argued the letters were written by the victim to Stafford during their
marriage and were admissible under Tex. Code Crim. Proc. Ann. art. 38.36 (Vernon 2005). (5) 
Additionally, the State repeatedly assured the trial court that the victim's daughters were
present and prepared to testify that the handwriting in the three letters was that of their
mother, Marygene Stafford.  
	Based upon the doctrine of "conditional relevancy," the trial court may admit evidence
on the condition that the party offering the evidence authenticate it, or "connect it up," at a
later time.  See Powell v. State, 898 S.W.2d 821, 829 (Tex. Crim. App. 1994); Fuller v. State,
829 S.W.2d 191, 198-99 (Tex. Crim. App. 1992), overruled on other grounds by Castello
v. State, 913 S.W.2d 529, 534 n.2 (Tex. Crim. App. 1995).  In the instant case, the State did
indeed authenticate the handwritten correspondence contained in State's Exhibit No. 16
through the victim's daughter, Debbie Shaw.  Ms. Shaw recognized the handwriting on all
three letters as being that of her mother.  For the reasons set out above, we find that the trial
court did not abuse its discretion in admitting the contents of State's Exhibit No. 16. (6)  We
overrule issue one. 
	Stafford's second issue complains that the trial court erred in permitting the State to
place Stafford's character into evidence for the sole reason of showing that Stafford acted
in conformity with such character.  He directs our attention to two of the State's witnesses,
Mary Totino and Trooper Terrell Grant Vincent of the Louisiana State Police.  Stafford
contends that the testimony of both witnesses "was simply evidence of [Stafford's] character,
offered to show that he acted in conformity therewith."  Stafford contends that because his
character was not placed at issue, the testimony by Totino and Vincent violated Tex. R. Evid.
404(a), (b).  The State argued to the trial court, and now to us, that Totino's testimony
involved her personal observations concerning the relationship between Marygene and
Stafford, and therefore was admissible under Tex. Code Crim. Proc. Ann. art. 38.36.  The
State characterizes Totino's testimony as describing Stafford as "impatient, anxious, angry,
aggravated and controlling."  The State contends Totino did not testify to any "acts" upon
Stafford's part, and that Stafford's "rude behavior" toward Marygene did not involve either
a bad act or offense as contemplated under Rule 404(b). (7) 
	At the outset, we note the Court of Criminal Appeals has held that while the language
of Rule 404(b) refers to "other crimes, wrongs, or acts," there is no requirement the evidence
in question refer to or involve another criminal offense "or even misconduct in order to fall
within the purview of Rule 404(b)."  Bishop v. State, 869 S.W.2d 342, 345 (Tex. Crim. App.
1993).  Therefore, Stafford's objection to Totino's testimony under Rule 404(b) was proper. 
Nevertheless, we must overrule Stafford's complaint regarding Totino's testimony because
the Court of Criminal Appeals has also held that the improper admission of evidence is not
reversible error when the same evidence is admitted without objection either before or after
the complained-of ruling.  Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998).  In
the instant case, similar "prior relationship" testimony was also elicited from the following
State's witnesses without objection:  Lynette Williams (the Staffords' former cleaning
woman), Debbie Shaw (Marygene's youngest daughter), Rannie Jolyne George (Marygene's
supervisor), Peggy Abbott (Marygene's sister), and Marianne Box (Marygene's eldest
daughter).  
	While Stafford requested, and was granted, a running objection to Totino's testimony,
the record does not indicate he requested that his running objection be applied to all
witnesses testifying to "prior relationship" matters.  Therefore, Stafford has failed to preserve
for appellate review any alleged error regarding "prior relationship" testimony.  See
Sattiewhite v. State, 786 S.W.2d 271, 283 n.4 (Tex. Crim. App. 1989); Goodman v. State,
701 S.W.2d 850, 863 (Tex. Crim. App. 1985), overruled on other grounds by Hernandez v.
State, 757 S.W.2d 744, 751-52 n.15 (Tex. Crim. App. 1988); Scaggs v. State, 18 S.W.3d 277,
292 (Tex. App.- -Austin 2000, pet. ref'd). 
	Trooper Vincent was the State's final witness, and was called to testify about an
incident involving Stafford that occurred at Harrah's Casino in Louisiana on August 12,
2004.  Vincent explained that his duties with the Louisiana State Police involved casino
gaming investigations.  Vincent testified that on August 12, 2004, he was asked to investigate
the possible theft of $5400 from the hotel room of Elton Stafford.  Vincent identified
Stafford as the man who lodged the theft complaint.  Vincent stated that after he reviewed
security records and watched video tape of surveillance cameras that recorded anyone
entering or exiting Stafford's hotel room, he came to the conclusion that Stafford's theft
allegations were false; that Stafford had "gambled all his money away and was looking for
some way to show the money was missing."    
	Prior to Vincent's testimony, a brief hearing was held on its admissibility.  Stafford
objected under Rule 404(a), (b), Rule 401, and Rule 403.  The State argued Vincent's
testimony was consistent with Stafford's motive for murdering his wife--gambling.  The
State also argued that the State's case-in-chief indicated that during the murder investigation
Stafford denied committing the murder and attempted to set up an alibi.  Therefore, the State
continued, "[t]he State should be allowed to show and prove evidence that directly or
circumstantially cast doubt of veracity of the Defendant's own statements. . . .  And it goes
directly to the Defendant's state of mind at the time that the murder was committed."  The
trial court overruled Stafford's objections.  
	An appellate court may not disturb a trial court's evidentiary ruling absent an abuse
of discretion.  See Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007).  As long as
the trial court's decision was within the zone of reasonable disagreement and was correct
under any theory of law applicable to the case, it must be upheld.  See Montgomery, 810
S.W.2d at 391.  Generally, evidence that does not have relevance apart from character
conformity is inadmissible.  Tex. R. Evid. 404(a).  However, under Rule 404(b), extraneous
misconduct evidence is not inadmissible if the evidence is relevant to a fact of consequence
apart from its tendency to show conduct in conformity with character. (8) See Johnston v. State,
145 S.W.3d 215, 219 (Tex. Crim. App. 2004).  Nevertheless, "an issue regarding the general
credibility of a witness[, or the accused] in a criminal trial is not a material issue in the sense
that it will justify the admission of inherently prejudicial evidence of details of an extraneous
offense committed by the witness [or the accused]."  See Owens v. State, 827 S.W.2d 911,
917 n.5 (Tex. Crim. App. 1992) (quoting Murphy v. State, 587 S.W.2d 718, 722 (Tex. Crim.
App. 1979)).     
	Once a trial court rules that extraneous misconduct evidence is admissible under Rule
404(b), the opponent of the evidence may further object under Rule 403.  See Santellan v.
State, 939 S.W.2d 155, 169-70 (Tex. Crim. App. 1997).  Rule 403 provides:  "Although
relevant, evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, or needless presentation of cumulative evidence."  Tex. R.
Evid. 403.  
	In keeping with the presumption of admissibility of relevant evidence, trial courts
should favor admission in close cases.  See Montgomery, 810 S.W.2d at 389.  The term
"probative value" refers to the inherent probative force of an item of evidence, i.e., how
strongly it serves to make more or less probable the existence of a fact of consequence to the
litigation, coupled with the proponent's need for that item of evidence.  Gigliobianco v. State,
210 S.W.3d 637, 641 (Tex. Crim. App. 2006).  When conducting a Rule 403 balancing test,
the trial court determines whether the probative value of the evidence is substantially
outweighed by one of the countervailing considerations listed in the rule.  See e.g. Crank v.
State, 761 S.W.2d 328, 342 n.5 (Tex. Crim. App. 1988), overruled on other grounds by
Alford v. State, 866 S.W.2d 619, 624 n.8 (Tex. Crim. App. 1993).  For Rule 403 purposes,
a trial court must balance (1) the inherent probative force of the proffered item of evidence
along with (2) the proponent's need for that evidence against (3) any tendency of the
evidence to suggest decision on an improper basis, (4) any tendency of the evidence to
confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given
undue weight by a jury that has not been equipped to evaluate the probative force of the
evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate
amount of time or repeat evidence already admitted.  Gigliobianco, 210 S.W.3d at 641-42. 
	In the instant case, we find Trooper Vincent's testimony admissible under Rules 401,
404(a), (b), and 403.  From the record we discern that part of the State's theory in this case
was that Marygene met her fate when she threatened to quit her job and thus, cut off any
further support of Stafford's gambling.  The fact that only eleven days after his wife's brutal
murder, Stafford was in Louisiana casinos losing a relatively large sum of money and
borrowing more money so he could continue gambling, as well as the testimony concerning
his apparent false theft report, was admissible under Rule 401 as relevant to Stafford's
apparent remorseless mental state, and was consistent with the State's theory that it was
Stafford's addiction to gambling that was at the heart of the money problems that essentially
poisoned the relationship between Stafford and Marygene.  As such, it was not merely
evidence of character conformity, but was also admissible under Rule 404(b) for the above-mentioned "other purposes" (Stafford's mental state and indirect article 38.36 "relationship"
evidence).  See Huffman v. State, 775 S.W.2d 653, 662 (Tex. App.--El Paso 1989, pet. ref'd)
("Even declarations by the accused after the commission of the offense are admissible to the
extent that they demonstrate malice, motive or the state of mind of the defendant.  Gentry v.
State, 172 Tex. Crim. 345, 356 S.W.2d 793, 795 ([1962])).").    
	Under Rule 403, the probative value of Stafford's remorseless mental state and his
apparent addiction to gambling is what also makes the evidence prejudicial.  In Hall v. State,
67 S.W.3d 870, 874-76 (Tex. Crim. App.), cert. granted, judgment vacated on other grounds,
537 U.S. 802, 123 S.Ct. 70, 154 L.Ed.2d 4 (2002), the defendant made grotesquely
incriminating out-of-court statements to news media during a video-taped interview.  Id. at
875.  During his subsequent capital murder trial, the video tape was introduced over the
defendant's Rule 401 and 403 objections.  Id. at 876.  On direct appeal, the Court of Criminal
Appeals held the video tape "simply reflects the reality of the crime committed and
[defendant's] lack of remorse.  In short, the prejudicial effect of this evidence comes from
nothing more than what [defendant] himself has done.  He cannot successfully say, 'You
must not be outraged by my outrageous behavior.'"  Id.  The Court concluded that though
prejudicial, the video tape was not unfairly so.  Id.  We, too, find that, although prejudicial,
Trooper Vincent's testimony regarding Stafford's gambling spree, involving a relatively
large gambling loss only eleven days after Marygene's murder, as well as the testimony
concerning his apparent false theft report, is not unfairly prejudicial.  Rules 401, 404(a), (b),
and 403 are not violated here.  Finding no abuse of discretion by the trial court, issue two is
overruled.
	The last issue for consideration complains of trial court error in overruling Stafford's
objection to the jury charge.  This issue is based upon the trial court's denial of Stafford's
request for an instruction on the misdemeanor offense of criminally negligent homicide and
an accompanying instruction on the mental state of criminal negligence.  The trial court did,
however, include a jury instruction on the lesser-included offense of manslaughter, although
the record fails to reveal if either party requested it, or if the court submitted it to the jury sua
sponte.  Stafford contends that the evidence at trial also entitled him to an instruction on the
lesser-included offense of criminally negligent homicide.   
	Reviewing courts use a two-step analysis in determining whether the defendant was
entitled to a jury instruction on a lesser-included offense.  See Hall v. State, 225 S.W.3d 524,
535 (Tex. Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App.
1993).  First, the requested instruction must indeed be a lesser-included offense of the
offense charged, and, second, there must be some record-evidence that, if the defendant is
guilty, he is guilty only of the lesser-included offense.  Guzman v. State, 188 S.W.3d 185,
188 (Tex. Crim. App. 2006).  The record-evidence "must establish the lesser-included
offense as a valid, rational alternative to the charged offense."  McKinney v. State, 207
S.W.3d 366, 370 (Tex. Crim. App. 2006).
	Under the first prong of the analysis, an offense is considered to be a lesser-included
offense if:  
	(1) it is established by proof of the same or less than all of the facts required
to establish the commission of the offense charged; 

	(2) it differs from the offense charged only in the respect that a less serious
injury or risk of injury to the same person, property, or public interest suffices
to establish its commission; 

	(3) it differs from the offense charged only in the respect that a less culpable
mental state suffices to establish its commission; or 

	(4) it consists of an attempt to commit the offense charged or an otherwise
included offense.

Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006).  The analysis of the first prong is
ultimately a question of law.  Hall, 225 S.W.3d at 535.  Under this analysis, we compare the
statutory elements of the charged offense as modified by the indictment with the elements
of the potential lesser-included offense.  See Hall, 225 S.W.3d at 535-36; Hayward v. State,
158 S.W.3d 476, 478 (Tex. Crim. App. 2005).  In the instant case, Stafford was indicted
under Tex. Pen. Code Ann. § 19.02(b)(1) (Vernon 2003), with the following modified
statutory elements:
	(1) Stafford
	(2) intentionally or knowingly
	(3) caused the death of an individual, namely Marygene Stafford
	(4) by striking Marygene Stafford in the head with a stone.

	The potential lesser-included offense, criminally negligent homicide, is found under
Tex. Pen. Code Ann. § 19.05(a) (Vernon 2003), and consists of the following modified
statutory elements:
	(1) Stafford
	(2) with criminal negligence
	(3) caused the death of an individual, namely Marygene Stafford
	(4) by striking Marygene Stafford in the head with a stone.

As the potential lesser-included offense is distinguishable from the offense charged only by
a less culpable mental state, it is a lesser-included offense of the offense charged.  Tex. Code
Crim. Proc. Ann. art. 37.09(3).  We therefore proceed to the second prong of the analysis,
determining whether there is any record-evidence that would have permitted Stafford's jury
to find that if he was guilty at all, he was guilty only of criminally negligent homicide.  See
Hall, 225 S.W.3d at 536.
	Recall that in addition to instructing the jury on the charged offense, the trial court
instructed the jury on the lesser-included offense of manslaughter, permitting a conviction
if the jury found Stafford "recklessly caused the death of . . . Marygene Stafford, by striking
Marygene Stafford in the head with a stone[.]"  Under Tex. Pen. Code Ann. § 6.03 (Vernon
2003), the pertinent portions of the definitions of the four culpable mental states are as
follows:
	(a)  A person acts intentionally, or with intent, with respect to . . . a result of
his conduct when it is his conscious objective or desire to . . . cause the result.

		. . . .

	(b)  A person acts knowingly, or with knowledge, with respect to a result of his
conduct when he is aware that his conduct is reasonably certain to cause the
result.
	(c)  A person acts recklessly, or is reckless, with respect to . . . the result of his
conduct when he is aware of but consciously disregards a substantial and
unjustifiable risk that . . . the result will occur.  The risk must be of such a
nature and degree that its disregard constitutes a gross deviation from the
standard of care that an ordinary person would exercise under all the
circumstances as viewed from the actor's standpoint.
	(d)  A person acts with criminal negligence, or is criminally negligent, with
respect to . . . the result of his conduct when he ought to be aware of a
substantial and unjustifiable risk that . . . the result will occur.  The risk must
be of such a nature and degree that the failure to perceive it constitutes a gross
deviation from the standard of care that an ordinary person would exercise
under all the circumstances as viewed from the actor's standpoint.

	In the instant case, Stafford argues that because the trial court instructed the jury on
manslaughter, "some evidence of the charged offense of murder was absent."  Stafford
surmises that the missing element must involve the culpable mental state and that because
the trial court instructed the jury on the lesser-included offense of manslaughter, which
involves a "reckless" culpable mental state, the trial court erred in refusing to include an
instruction on criminally negligent homicide which involves the least culpable mental state
of criminal negligence.    
	Recently, the Court of Criminal Appeals pointed out that the culpable mental states
of "recklessness" and "criminal negligence" must not be confused or blended into each other. 
See Williams v. State, 235 S.W.3d 742, 750-51 (Tex. Crim. App. 2007).  The Court
elaborated further, viz:
	With criminal negligence, the defendant ought to have been aware of a
substantial and unjustifiable risk that his conduct could result in the type of
harm that did occur, and that this risk was of such a nature that the failure to
perceive it was a gross deviation from the reasonable standard of care
exercised by ordinary people.  Criminal negligence depends upon a morally
blameworthy failure to appreciate a substantial and unjustifiable risk while
recklessness depends upon a more serious moral blameworthiness - the actual
disregard of a known substantial and unjustifiable risk.

Id. (footnote omitted).  
	In the instant case, we will not speculate upon what basis the trial court included the
lesser-included offense of manslaughter in the jury's instructions.  We do note that Stafford's
"missing element" argument does not appear to have been made to the trial court.  Regardless
of this, we find no record-evidence indicating Marygene's murder was the result of an act of
criminal negligence.  The uncontroverted evidence indicates Marygene was struck in the
head at least twice with a great deal of force as at least one of the blows fractured her skull
and caused injuries to her brain.  Additionally, her injuries were consistent with being struck
with "a big rock" and not with a fist, as "[a] fist would not cause these kind of injuries." 
Also, the blood spatter expert testified that the rock or stone struck Marygene in the head at
a speed ranging from five to twenty-five feet per second.  Recall that Stafford did not testify
in his defense.  Our review of the record does not identify any evidence which would make
the offense of criminally negligent homicide a valid, rational alternative to the offense of
murder.  In other words, there is simply no evidence that indicates that in striking Marygene
in the head at least twice with "a big rock," Stafford failed to appreciate that a substantial and
unjustifiable risk of death to Marygene could result from his conduct.  See, e.g. Stadt v. State,
182 S.W.3d 360, 364 (Tex. Crim. App. 2005).
	Moreover, assuming without deciding the requested instructions were supported by
some evidence, any error would be harmless because the jury's rejection of the intervening
manslaughter instruction indicates the jury legitimately believed Stafford was guilty of the
greater, charged offense, and because the manslaughter option is not a less plausible theory
of culpability than is criminally negligent homicide under the record before us.  See
Masterson v. State, 155 S.W.3d 167, 171-72 (Tex. Crim. App. 2005), cert. denied, 546 U.S.
1169, 126 S.Ct. 1330, 164 L.Ed.2d 47 (2006); Flores v. State, 215 S.W.3d 520, 530-31 (Tex.
App.--Beaumont 2007), aff'd, No. PD-0265-07, 2008 WL _________ (Tex. Crim. App. Feb.
13, 2008).  We find no abuse of discretion by the trial court in refusing Stafford's requested
jury instruction on criminally negligent homicide.  Issue three is overruled, and the judgment
of the trial court is affirmed.
	AFFIRMED.    
                                                                            __________________________________
                                                                                              CHARLES KREGER
                                                                                                         Justice

Submitted on June 26, 2007
Opinion Delivered February 20, 2008
Publish

Before Gaultney, Kreger, and Horton, JJ.
1. 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. 953 S.W.2d 234 (Tex. Crim. App. 1997).  
3. The Jackson Court's familiar standard reads:  "[T]he relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt." 
Jackson, 443 U.S. at 319.  
4. The result is the same under the Jackson v. Virginia standard for evidentiary
sufficiency.  The record reflects the following exchange took place between the State and
Dr. Tommy Brown, the forensic pathologist:  
	Q.[State]  Okay.  Based upon your autopsy, do you have an opinion as to
the cause of Marygene Stafford's death?
	A.[Dr. Brown]  The cause of her death, I do.  
	Q.  What is that opinion?
	A.  I termed it as "blunt force injuries of head with craniocerebral injury." 
"Craniocerebral injury" means she had a fractured skull and also injuries to
her brain.
	Q.  Okay.  Now, looking at those photos like we just did, is it possible that
the same instrument was used or could have been used to strike both of
those blows?
	A.  Yes, it's possible.
	Q.  Okay.  Is it possible that one blow was struck with, say a big rock and
another one was struck with a fist?  Say, the temple area, is it possible that
that was struck with a fist?
	A.  No.  A fist would not cause these kind of injuries.
	Q.  Okay.  Are those wounds that we just looked at on Ms. Stafford -- she
died from the one in the left temple area; right?
	A.  Yes.
	Q.  Are they consistent with her being struck in the head twice with a large
stone or large rock that would be flat or maybe concave shape?
	A.  It could be consistent with that.
	Q.  Okay.  You can't say what it was but it could be -- it is consistent with
that?
	A.  Yes, sir.  I can't say whether it was or not, but it's consistent with that.

		. . . .

	Q.  Okay.  Let's assume that she was struck in the back of the head first and
then in the left temple area second.  Would the blow in the back of the head
render her unconscious?
	A.  Most probably, yes.
	Q.  Okay.  In your opinion, were those two blows -- and based upon your
autopsy, do you think she was rendered unconscious immediately or is there
a possibility that she may not have been unconscious when she died?  What
I'm saying is:  Did it knock her out where she didn't feel anything, or are
you able to say that?
	A.  Well, no.  If the one to the left temple area was struck first, then that's a
-- that would have rendered probably dead very shortly after she was struck,
but I'm sure that she was rendered unconscious first. 
5. Article 38.36(a) reads:  "In all prosecutions for murder, the state or the defendant
shall be permitted to offer testimony as to all relevant facts and circumstances
surrounding the killing and the previous relationship existing between the accused and the
deceased, together with all relevant facts and circumstances going to show the condition
of the mind of the accused at the time of the offense."
6. Stafford does not appear to have objected at trial, nor does he complain on appeal,
concerning the two cash-register receipts that were also admitted into evidence at trial as
a part of State's Exhibit No. 16.   
7. All subsequent references to "Rule" or "Rules" refer to the Texas Rules of
Evidence.
8. Rule 404(b) reads, in pertinent part, as follows:  "Other Crimes, Wrongs or Acts. 
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a
person in order to show action in conformity therewith.  It may, however, be admissible
for other purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident. . . ."   
