                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             ____________________

                              NO. 09-14-00367-CR
                             ____________________

                         KELVIN LEE ROY, Appellant

                                        V.

                  THE STATE OF TEXAS, Appellee
_________________________________        ______________________

                On Appeal from the 163rd District Court
                        Orange County, Texas
                     Trial Cause No. B-140,221-R
____________________________________________                        ____________

                          MEMORANDUM OPINION

      A jury convicted Kelvin Lee Roy of murder and assessed a punishment of

seventy-five years in prison. In two appellate issues, Roy challenges the

sufficiency of the evidence and the denial of his request for a jury instruction on

the lesser-included offense of manslaughter. We affirm the trial court’s judgment.

                                   Background

      Roy was charged with the death of Alexandria Bertrand, which resulted

from a vehicle collision. According to Taralynn Brown, Roy’s former girlfriend,

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Roy was driving her vehicle on the night of the offense so that she could purchase

food. During the drive, Roy passed his exit, repeated words to himself, and lit a dip

cigarette.1 Brown testified that Roy was driving in two lanes and almost struck the

side of the freeway and other vehicles, but Roy refused to pull over. Roy told

Brown, “I’m going to kill both of us.”

      Christopher Morgan, Joshua Bryan, and Brittany Monroe testified that they

saw Roy drive past them at a high rate of speed. Morgan and Bryan testified that

Roy overcorrected and nearly struck the curb. Bryan and Monroe heard the engine

revving as it sped past them. Bryan testified that “it was like whoever the driver of

the car was hit the gas, because you could see the rear end of the car actually sit

down[.]” Morgan, Bryan, and Monroe testified that they never saw the vehicle’s

brake lights. Morgan believed Roy had “[n]o intent to stop.” Monroe testified that

it did not appear that Roy was attempting to avoid other vehicles.

      Brown testified that Roy continued driving “crazy” and that she begged Roy

to stop, but that Roy accelerated and Brown recalled “flying in the air and

crashing.” April Bertrand testified that she and her daughter, Alexandria, were in

their vehicle, stopped at a red light, when Roy struck Bertrand’s vehicle. Kevin

Huebel testified that he was approaching the red light when Roy flew past him and

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          Roy testified that a “dip cigarette” is a cigarette dipped in P.C.P.
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collided with Bertrand’s vehicle. Bertrand testified that Alexandria was ejected

from the vehicle. Huebel compared the sound of the accident to an explosion or

bomb. Officer Rodney Johnson described the scene as looking like a war zone or a

bomb explosion.

       Victoria Andis, who heard the crash and saw Roy’s vehicle fly toward her

and roll to a stop, testified that Brown was screaming and trying to climb out of the

vehicle’s window. Andis assisted Brown, who told Andis that Roy was driving

crazy, was under the influence, and was trying to kill Brown and himself. Andis

smelled alcohol in the vehicle and saw drugs around the vehicle. Monica Hall, a

registered nurse who stopped to help, testified that Brown told her that Roy was

“under the influence.” Officer Chase Alexander testified that Brown told him she

thought Roy was under the influence, but she did not mention Roy trying to kill

her.

       Hall and Alexander testified that Roy was unconscious in his vehicle.

Johnson testified that he smelled an odor of alcohol around the vehicle and that

Roy was non-responsive. Officer Jesus Loredo testified that Roy was in and out of

consciousness, was lethargic, and had a “wild-eyed” appearance. He testified that

Roy’s symptoms could be indicative of either being intoxicated or having been in

an accident. Loredo also smelled a strong odor of alcohol coming from the vehicle

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and he collected baggies of marihuana and cocaine from the area around the

vehicle. Roy denied ownership of the drugs.

      Bertrand testified that, at the hospital, Alexandria was pronounced brain

dead. Dr. John Ralston, a forensic pathologist, explained that Alexandria suffered

from a fracture at the base of her skull, hypermobility, blood in her lungs, bleeding

over her brain, a spinal cord injury, and skin lacerations. He testified that

Alexandria died of blunt force trauma.

      Sergeant Richard Howard testified that he saw no pre-impact skid marks at

the scene, which indicated an absence of braking before impact. He testified that he

has seen intoxicated people involved in an accident without ever having applied

the brakes. Alexander testified that Roy’s erratic driving was consistent with a

person driving while intoxicated, but was also consistent with a person intending to

cause an accident. According to Howard, Roy’s vehicle became airborne before

striking the back right side of Bertrand’s vehicle. Given that the battery was

thrown from Roy’s vehicle and the vehicle landed quite a distance from the point

of impact, Howard believed the vehicle was traveling at a high rate of speed.

      Roy testified that on the night of the offense, he and Brown were driving to

pay someone for repairing Brown’s car. He testified that Brown brought two cups

of alcohol and that they drank and used marihuana in the vehicle. Brown testified

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that she had been drinking that day, but was not intoxicated and did not use

marihuana in the vehicle. She believed that Roy was intoxicated when the offense

occurred. Roy’s blood tested positive for benzodiazepine, phencyclidine (P.C.P.),

and T.H.C. and his blood alcohol level was well below the legal limit.

      According to Roy, the repairman was not at home, so he lit a dip cigarette

and headed home. When he began to feel dizzy, he told Brown to take the steering

wheel and attempted to pull over, but he passed out. He attributed this to the

combination of drugs, marihuana, dip cigarette, and alcohol. Roy could not recall

speeding down the road or the accident itself. He testified that he did not intend to

speed and was unaware of what was happening when the accident occurred.

      Roy admitted having a history of drug use and drug-related criminal

offenses, including a conviction for assault family violence against Brown. He

testified that he smoked marihuana daily, used P.C.P. maybe twice per month, and

consumed alcohol once or twice per month. He admitted knowing the risks of

drinking and driving, as well as smoking marihuana and driving, but he still chose

to drive. Roy denied getting into an argument with Brown, becoming enraged, or

threatening Brown with injury or death. He testified that he acted recklessly, but

had no intent to injure anyone, including Brown, and that he accepted

responsibility for Alexandria’s death.

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                            Sufficiency of the Evidence

      In issue one, Roy maintains that the evidence is insufficient to support his

murder conviction. The “Jackson v. Virginia legal-sufficiency standard is the only

standard that a reviewing court should apply in determining whether the evidence

is sufficient to support each element of a criminal offense that the State is required

to prove beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 895 (Tex.

Crim. App. 2010). We assess all the evidence in the light most favorable to the

prosecution to determine whether any rational trier of fact could find the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

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

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

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

      The indictment alleged that Roy intended to cause serious bodily injury to

Brown and intentionally committed an act clearly dangerous to human life, “to wit:

driving a vehicle in which the said Taralynn Brown was a passenger into another

vehicle causing the vehicles to collide which said act caused the death of

Alexandria Bertrand[.]” See Tex. Penal Code Ann. § 19.02(b)(2) (West 2011). On




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appeal, Roy maintains that the evidence is insufficient to prove murder because,

according to Roy, he was intoxicated and lacked any intent to harm or kill Brown.

      “Circumstantial evidence alone is sufficient to establish guilt[]” and intent

may be inferred from circumstantial evidence such as the appellant’s acts, words,

and conduct. Guevara v. State, 152 S.W.3d 45, 49-50 (Tex. Crim. App. 2004). In

this case, the jury heard testimony that Roy was driving erratically on the night of

the offense. Brown testified that Roy expressly stated that he intended to kill both

himself and Brown. Andis testified that Brown also told her that Roy intended to

kill them both. Witnesses testified that Roy’s vehicle accelerated and no brake

lights were ever seen. The jury heard witnesses testify that Roy appeared to have

no intent to either stop or avoid other vehicles. Sergeant Howard testified that the

absence of pre-impact skid marks indicated that Roy’s vehicle had not braked

before impact. Howard believed that Roy’s vehicle had been traveling at a high

rate of speed. The jury heard evidence suggesting that the manner in which Roy

was seen driving was consistent with a person driving with the intent to cause

harm. Additionally, the record contains evidence demonstrating that Roy had

intentionally harmed Brown in the past.

      As sole judge of the witnesses’ credibility and the weight of their testimony,

the jury bore the burden of resolving any conflicts in the evidence. See Jackson,

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443 U.S. at 318-19; see also Hooper, 214 S.W.3d at 13. In doing so, the jury was

entitled to reject Roy’s version of the events leading up to the offense and to accept

Brown’s testimony that Roy intended to kill her. Based on the evidence presented

at trial, the jury could reasonably infer Roy’s intent to cause serious bodily injury

to Brown and intent to commit an act clearly dangerous to human life, thereby

causing Alexandria’s death. See Guevara, 152 S.W.3d at 49-50; see also Palafox v.

State, 484 S.W.2d 739, 743 (Tex. Crim. App. 1972) (A vehicle is not a deadly

weapon, per se, so that intent may be presumed, but intent may be shown from all

the circumstances surrounding the killing.); see also Tex. Penal Code Ann. §

19.02(b)(2). Viewing all the evidence in the light most favorable to the State, the

jury could reasonably conclude, beyond a reasonable doubt, that Roy committed

the offense of murder. See Tex. Penal Code Ann. § 19.02(b)(2); see also Jackson,

443 U.S. at 318-19; Hooper, 214 S.W.3d at 13. We overrule issue one.

                                    Jury Charge

      In issue two, Roy challenges the trial court’s denial of his request for a jury

instruction on the offense of manslaughter. He contends that the jury could have

determined that he was the cause of Alexandria’s death by his recklessness but not

that he intended to harm Brown. The first step in our analysis is to determine

whether the lesser-included offense is included within the proof necessary to

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establish the charged offense. Sweed v. State, 351 S.W.3d 63, 67-68 (Tex. Crim.

App. 2011). The Court of Criminal Appeals has held that manslaughter is a lesser-

included offense of murder. Cavazos v. State, 382 S.W.3d 377, 383-84, 386 (Tex.

Crim. App. 2012).

      Accordingly, we proceed to the second part of the analysis, which is whether

there is some evidence from which a rational jury could acquit the defendant of the

greater offense while convicting him of the lesser-included offense. Sweed, 351

S.W.3d at 68. The record must contain some evidence that would permit a jury to

rationally find that, if the defendant is guilty, he is guilty only of the lesser-

included offense. Id. If evidence from any source raises a defensive issue or raises

an issue that a lesser-included offense may have been committed, and an

instruction is properly requested, the issue must be submitted to the jury. Id. at 69.

      A person commits manslaughter if he recklessly causes a person’s death.

Tex. Penal Code Ann. § 19.04(a) (West 2011). A person acts recklessly “when he

is aware of but consciously disregards a substantial and unjustifiable risk that the

circumstances exist or the result will occur.” Id. § 6.03(c) (West 2011). According

to Roy, he passed out from a combination of drug and alcohol use, was unaware of

what was happening, had no control while in the vehicle, and could not remember

anything after he passed out, including speeding down the highway and crashing

                                           9
into Bertrand’s vehicle. Based on Roy’s own testimony, the record does not

demonstrate that at the time of the offense, Roy was aware of, but consciously

disregarded, a substantial and unjustifiable risk that Alexandria would die as a

result of his conduct. See id.

      “Evidence of a defendant’s inability to remember causing the death of the

victim does not entitle the defendant to a charge on the lesser-included offense of

manslaughter[.]” Schroeder v. State, 123 S.W.3d 398, 401 (Tex. Crim. App. 2003).

Because Roy’s testimony establishes that he was unaware of the result of his

conduct, the trial court properly denied Roy’s request for an instruction on the

lesser-included offense of manslaughter. See id.; see also Tex. Penal Code Ann. §

6.03(c). We overrule issue two and affirm the trial court’s judgment.

      AFFIRMED.



                                             ______________________________
                                                    STEVE McKEITHEN
                                                        Chief Justice

Submitted on August 4, 2015
Opinion Delivered August 26, 2015
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.




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