                                                                                 PD-1515-14
                                                                COURT OF CRIMINAL APPEALS
                                                                                 AUSTIN, TEXAS
                                                             Transmitted 12/29/2014 3:33:49 PM
                                                              Accepted 12/30/2014 10:41:24 AM
                                                                                  ABEL ACOSTA
                             Cause No. PD-1515-14                                         CLERK

                             In the Court of Criminal
                                 Appeals of Texas


                           Benjamin Jerome Prince,
                                  Petitioner
December 30, 2014
                                        v.

                               The State of Texas,
                                  Respondent

                    On Review from Cause No. 08-12-00290-CR
                          in the Eighth Court of Appeals
                                  El Paso, Texas
                          (on Transfer from Fort Worth)


     State’s Response to Appellant’s Petition for Discretionary Review


                               Maureen Shelton
                     Wichita County Criminal District Attorney

                                 Carey Jensen
                         Asst. Criminal District Attorney
                             Wichita County, Texas
                            State Bar No. 24083252
                         Carey.Jensen@co.wichita.tx.us
                               900 Seventh Street
                          Wichita Falls, Texas 76301
                             (940) 766-8113 phone
                               (940) 716-8530 fax

                     Attorney for Respondent State of Texas

                         Oral Argument Not Requested
To the Court of Criminal Appeals:

      Pursuant to Rule 68.9 of the Rules of Appellate Procedure, the State

submits its reply to Appellant’s petition for discretionary review. The State

makes this reply in order to briefly address argument set forth by Appellant

in his petition.

                     Statement Regarding Oral Argument

      Because the record and briefing clearly reflects that there was no

evidence to support any lesser-included jury instructions, the State feels

oral argument is unnecessary.

                                     Argument

      The State respectfully requests this Court deny Appellant’s petition

because Appellant failed to show a scintilla of evidence to support a jury

instruction on any lesser-included offenses, as the Eighth Court of Appeals

rightfully concluded.

                                      The Facts

      Appellant brutally beat his child victim with a gun that he had just

used to shoot another person.1 When the gun slipped out of his hand and



1
        Prince v. State, No. 08-12-00290-CR, slip op. at 3, (Tex. App.—El Paso Oct. 17,
2014), available at
http://www.search.txcourts.gov/SearchMedia.aspx?MediaID=18ad75ce-cae9-44cc-
8881-3902b8bdf562
                                           2
was lost, he continued to beat this child with a hammer until the child was

dead.2

                                 Applicable Law

      The State agrees with Appellant that – as indicted – murder is a

lesser-included offense of capital murder, and felony murder is a lesser

included offense of murder. Anything more than a scintilla of evidence may

entitle a defendant to a charge on a lesser offense.3

                   No evidence of a lesser-included offense

      As the El Paso Court of Appeals correctly analyzed, there was no

evidence to support a jury instruction on either of the lesser-included

offenses.

      The autopsy revealed that the cause of death was a homicide, based

on the severity of quantity of injuries, and “massive blunt force trauma to

the head.”4 Not only did the child have injuries consistent with being hit

with a gun and a hammer, but injuries consistent with someone standing on

his neck.5

      There is absolutely no evidence that Appellant did not know that

standing on a child’s neck, beating the child in the head with a gun, and

2
      Id.
3
      Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007)
4
      Prince, slip op. at 6.
5
      Id.
                                         3
then beating the child in the head with a hammer would cause death.

There was no evidence presented that Appellant only intended to wound

the child with this behavior. The inference that a use of a deadly weapon in

a deadly manner can cause death is almost conclusive.6

      When briefing the “scintilla” prong of the test, Appellant merely states

that the “totality of the evidence presented at trial legitimately present more

than a scintilla of evidence” to support the lesser-included instructions.7

Appellant only points to the testimony that he acting in a “dissociative”

state, and that the rage directed at the child was meant for the child’s

mother. However, a dissociative state does not render Appellant ignorant

of the fact that beating a child repeatedly over the head with multiple hard

objects would probably cause death.

      Because there was no evidence that if Appellant was guilty, he was

guilty of a lesser -included offense, the trial court did not err in denying the

jury instruction, and the court of appeals did not err in overruling Appellant’s

issue on appeal.




6
      Adams v. State, 886 S.W.2d 210, 215 (Tex. Crim. App. 1993).
7
      Appellant’s Brief at 15.
                                        4
                                     Prayer

      The State prays that the Court deny Appellant’s petition for

discretionary review.

                                        Respectfully submitted,

                                        Maureen Shelton
                                        Criminal District Attorney
                                        Wichita County, Texas

                                        /s/Carey Jensen
                                        Carey Jensen
                                        Asst. Criminal District Attorney
                                        Wichita County, Texas
                                        State Bar No. 24083252
                                        Carey.Jensen@co.wichita.tx.us

                                        900 Seventh Street
                                        Wichita Falls, Texas 76301
                                        (940) 766-8113 phone
                                        (940) 766-8177 fax


                          Certificate of Compliance

      I certify that this document contains 557 words. The body text is in

14 point font, and the footnote text is in 12 point font.

                                            /s/Carey Jensen




                                        5
                             Certificate of Service

      I certify that on December 29, 2014, a true and correct copy of the

above document has been forwarded James Rasmussen and Julia Bella

via   electronic   service    to   James.Rasmussen@co.wichita.tx.us     and

Julia.Bella@co.wichita.tx.us as well as the State Prosecuting Attorney, Lisa

C. McMinn, via electronic service to information@spa.texas.gov.

                                           /s/Carey Jensen




                                       6
