                                    NO. 07-02-0204-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL B

                                  OCTOBER 27, 2003
                           ______________________________

                                 KEVIN DAAWN DARNES,

                                                           Appellant

                                               v.

                                  THE STATE OF TEXAS,

                                                 Appellee
                         _________________________________

              FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                     NO. 43, 144-E; HON. ABE LOPEZ, PRESIDING
                         _______________________________

                                Memorandum Opinion
                          _______________________________

Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.

       Appellant Kevin DaAwn Darnes appeals his conviction for capital murder via four

issues. Two concern the trial court’s decision to exclude evidence of a mental condition

of which he purportedly suffered. His third issue involves the trial court’s refusal to instruct

the jury on a lesser-included offense, while the last issue concerns the exclusion of
evidence allegedly relevant to whether his confession was voluntary.1 We affirm the

conviction.

  Issues One and Two – Exclusion of Evidence Relating to His Mental Condition

        As previously mentioned, appellant’s first two issues involve the exclusion (during

the guilt-innocence phase of the trial) of evidence relating to a mental condition of which

he allegedly suffered. The condition was known as “intermittent explosive disorder.”

According to appellant, the evidence was relevant even though he was not claiming

insanity. This was supposedly so because it negated the mens rea averred by the State

in the indictment. The evidence would have illustrated that he could not have acted with

the specific intent requisite to the commission of capital murder, according to appellant.

Furthermore, in excluding the evidence, the trial court allegedly denied him due process.

We overrule the issues for the following reasons.

        First, the argument that evidence regarding one’s mental condition may be used to

negate the mens rea involved in a specific intent crime was rejected in Wagner v. State,

687 S.W.2d 303 (Tex. Crim. App. 1984). As stated by the Texas Court of Criminal Appeals

in that opinion, “the issue of appellant’s sanity having been taken out of the case,

appellant’s proffered evidence was not material on the issue of his guilt, and its

introduction at the guilt phase . . . would only have confused the jury . . . .” Id. at 312;

accord Warner v. State, 944 S.W.2d 812, 815-16 (Tex. App.–Austin 1997, pet. dism’d)

(also holding the evidence inadmissible).


        1
          Appellant does not argue on appeal that his confession was involuntary. Nor does he assert that
the trial court erred in admitting it into evidence. He simply contests the trial court’s refusal to admit
evidence purportedly relevant to the voluntariness of his inculpatory statements.

                                                    2
       Second, though appellant alludes to art. 38.36 of the Texas Code of Criminal

Procedure in his appellate brief, he fails to illustrate where it was mentioned at trial as

grounds for admitting the evidence. Nor did our review of those portions of the record to

which he cites reveal that the statute was mentioned as a ground supporting admission of

the evidence. Since it is clear that the grounds urged for reversal on appeal must comport

with those uttered at trial and art. 38.36 was not mentioned below, appellant failed to

preserve any complaint founded upon art. 38.36. Brown v. State, 6 S.W.3d 571, 582 (Tex.

App.–Tyler 1999, pet. ref’d).

       Third, while appellant did contend that the trial court’s decision denied him a litany

of rights afforded him under the United States and Texas Constitutions, nothing was said

about those constitutional rights until he made a “proffer of evidence.” That occurred after

both the State and appellant completed the presentation of their respective cases at the

guilt-innocence phase of the trial. It is clear that one must contemporaneously object to

that which he perceives as objectionable. Weyandt v. State, 35 S.W.3d 144, 154 (Tex.

App.–Houston [14th Dist.] 2000, no pet.). Furthermore, “when the objection is made,” the

litigant “must not only identify what is objected to but [also] must set forth grounds for the

objections.” (Emphasis added). Cisneros v. State, 692 S.W.2d 78, 83 (Tex. Crim. App.

1985); Villareal v. State, 811 S.W.2d 212, 217 (Tex. App.–Houston [14th Dist.] 1991, no

pet.). Given this, logic dictates that all the grounds relied upon must be asserted

contemporaneously with the objection. Withholding one or more of those grounds when

the complaint involves matters of evidence until both parties have completed their

respective presentation of the evidence is hardly contemporaneous.               Under that


                                              3
circumstance, it can be said that the trial court has been denied the opportunity to rule

appropriately. See Villareal v. State, 811 S.W.2d at 217 (stating that one of the policy

reasons underlying the need for a specific objection is to inform the judge of the basis of

the objection and afford him the opportunity to rule appropriately). Consequently, we hold

that appellant waived any complaint he had founded upon the supposed denial of his

constitutional rights.

       Nevertheless, and assuming that the constitutional complaints had been preserved,

we conclude that appellant’s reliance on Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920,

18 L.Ed.2d 1019 (1967) is misplaced. While the Supreme Court there recognized that due

process affords a defendant the right to present witnesses to establish a defense,

Washington dealt with the right to compulsory process and a statute prohibiting persons

charged as principles, accomplices, or accessories from being witnesses for each other.

Id. U.S. at 23, 87 S.Ct. at 1925, 18 L.Ed.2d at 1025. The Court said nothing about having

a due process right to present evidence of a mental condition for purposes of defeating the

applicable mens rea. Nor do we read it as holding that a litigant has a due process right

to offer irrelevant evidence. Indeed, we know of no opinion so suggesting. Thus, to the

extent that the Texas Court of Criminal Appeals held evidence of the ilk at bar to be

irrelevant under the circumstances at bar, we find no violation of due process when the

trial court excludes it.

                           Issue Three – Lesser-Included Offense

       In his third issue, appellant contends that the trial court erred in refusing to instruct

the jury on the lesser-included offense of “simple murder.” That is, he asserts that


                                               4
evidence appeared of record supporting the submission of “non-capital murder.” The

evidence in question consisted of a statement purportedly indicating that appellant acted

in anger and under a loss of control and was on suicide watch after being arrested. And,

since it was before the jury, the latter allegedly could have found that appellant “killed

Kaleb without the intent to do so.” (Emphasis added). In other words, appellant asserts

that because some evidence illustrates that he did not intentionally kill the decedent, the

trial court should have instructed the jury on the lesser offense of simple murder.2 We

overrule the issue.

       As previously mentioned, the State charged appellant with capital murder. It did so

on the basis that he “intentionally or knowingly cause[d] the death of . . . Kaleb Miles, . . .

and the said Kaleb Miles was then and there an individual under six years of age.”

According to statute, one may be convicted of capital murder if he “commits murder as

defined under Section 19.02(b)(1) [of the Penal Code] and . . . murders an individual under

six years of age.” TEX . PEN . CODE ANN . §19.03(a)(8) (Vernon Supp. 2004). Furthermore,

one commits murder under §19.02(b)(1) if he “intentionally or knowingly causes the death

of an individual.” (Emphasis added). Id. §19.02(b)(1) (Vernon 2003). In other words, an

accused need not “intentionally” cause death to be found guilty of murder; he may be so

convicted if he acted “knowingly.” And, to the extent that a knowing (as opposed to an

intentional) mens rea is sufficient, then it logically follows that if the decedent is also under

six years of age, the accused has performed acts sufficient to satisfy the elements of

capital murder. So, merely disproving that he may have acted “intentionally” does not ipso


       2
           Appellant does not argue that this evidence also rebuts the possibility that he acted knowingly.

                                                      5
facto insulate the actor from being found guilty for capital murder if he nonetheless was

charged with acting, and the State proved he acted with, a knowing state of mind.3 And,

therein lies the problem with appellant’s argument.

        Again, the State indicted appellant for intentionally or knowingly causing the death

of an individual under six. Moreover, the trial court charged the jury in a similar, disjunctive

fashion. So, evidence tending to illustrate that appellant did not intentionally cause the

death of the eleven-month-old child did not insulate appellant from being convicted of

capital murder. As previously illustrated, he could be found guilty of the charge if the State

proved and the factfinder concluded that he acted with a knowing state of mind. Thus,

rebutting the accusation of an intentional mens rea did not entitle appellant to an

instruction on simple murder since the evidence cited by appellant (assuming the jury

believed it) did not require the factfinder to conclude that if he was guilty, he was guilty

only of murder. See Schweinle v. State, 915 S.W.2d 17, 18 (Tex. Crim. App. 1996) (stating

that before the court must charge the jury about the lesser-included offense, the evidence,

if believed by the jury, must show that appellant was guilty only of the lesser crime).

        Next, we note that appellant filed a supplement brief wherein he asserted, for the

first time, that he was entitled to an instruction on the lesser-included offense of murder

under §19.02(b)(2) of the Texas Penal Code. That statute permits the conviction of one

for murder via proof that while intending to cause serious bodily injury the actor committed


        3
          This assumes, of course, that if both an intentional and knowing mens rea are mentioned in the
indictment, the trial court charged the jury about those mental states in the disjunctiv e. See Wagner v. State,
687 S.W.2d 303, 310 (Tex. Crim. App. 1984) (holding that because the jury was charged in the conjunctive,
the jury had to find that the appellant acted intentionally); Id. at 308 (holding that because the jury was
charged in the disjunctive, the appellant could be convicted simply because he knowingly committed the act).

                                                       6
an act clearly dangerous to human life that resulted in the death of an individual. TEX .

PEN . CODE ANN . § 19.02(b)(2) (Vernon 2003). Aside from the fact that the same evidence

which allegedly negated the mens rea of intent for purposes of capital murder would most

likely negate it for purposes of murder under §19.02(b)(2), the issue was not preserved.

Simply put, he did not request the instruction. Furthermore, the failure to ask the trial court

to charge the jury on a lesser-included offense does not preserve the issue for review.

Hernandez v. State, 10 S.W.3d 812, 821 (Tex. App.–Beaumont 2000, pet. ref’d); see

Posey v. State, 966 S.W.2d 57, 63-64 (Tex. Crim. App. 1998) (stating that Almanza

concerns issues of which a trial court has a duty to inform the jury and that it does not

require the sua sponte submission of defensive issues).

                        Issue Four - Voluntariness of Statement

       In his fourth issue, appellant again attacks the trial court’s decision to exclude

evidence of his purported mental condition. This time he does so in relation to the

voluntariness of his confession. That is, he believes that the evidence had relevance to

whether his confession was voluntarily uttered. We overrule the issue.

       For purposes of this issue, we assume arguendo that evidence of a mental

condition could be relevant to the question of whether one voluntarily confessed. See

Reed v. State, 59 S.W.3d 278, 281 (Tex. App.–Fort Worth 2001, pet. ref’d) (stating that

mental impairment is a factor in ascertaining the voluntariness of a confession). Yet, we

conclude that the relevance of the evidence is also dependent on the satisfaction of at

least two criteria. The first concerns the existence of proof (either direct, circumstantial or

inferential) illustrating that the mental condition of which he suffered was reasonably


                                              7
capable of having such an affect on appellant’s mind so as to render the confession

involuntary. Indeed, if it was not of such ilk then it could hardly be relevant to the question

of whether it interfered with his ability to act voluntarily. The second concerns the

existence of proof illustrating that the condition impaired the accused at the time he

confessed. For instance, if the condition was such that it had to be triggered by certain

stimuli and that stimuli was absent at the time of the confession, then evidence of the

condition would be irrelevant.

       Here, appellant cites us to nothing of record suggesting that the mental condition

of which he purportedly suffered was capable of preventing him from acting voluntarily

under the circumstances and at the time of his confession. Nor does he cite us to

evidence suggesting that the condition affected his thought processes or free will at that

very same time. Moreover, his “proffer of evidence” does not fill the void. Through it,

appellant simply described, in general, past diagnoses of his mental condition and the

potential effect of that condition on his mens rea at the time he killed the eleven-month-old

child. He does not describe the excluded evidence as suggesting that his alleged

condition was in any way operative when he confessed or that it impaired his ability to

voluntarily confess when he confessed. Under these circumstances, we cannot say that

the trial court abused its discretion in concluding that the evidence was irrelevant to the

issue of the voluntariness of his confession.

       Accordingly, we affirm the judgment of the trial court.



                                                          Brian Quinn


                                              8
               Justice
Publish.




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