Opinion filed May 31, 2012




                                                         In The


    Eleventh Court of Appeals
                                                      __________

                                               No. 11-10-00138-CR
                                                   __________

                              ROGER DALE BRECHEEN, Appellant

                                                             V.

                                       STATE OF TEXAS, Appellee


                                   On Appeal from the 42nd District Court

                                                Taylor County, Texas

                                          Trial Court Cause No. 23302A


                                    MEMORANDUM OPINION

         The jury convicted Roger Dale Brecheen, appellant, of murder and assessed his
punishment at confinement for a term of forty-eight years. We affirm.
         Appellant presents five issues for review.1 In the first issue, he challenges the sufficiency
of the evidence to support the jury’s rejection of self-defense. In the second issue, appellant
contends that the trial court abused its discretion when it denied, without a hearing, trial


         1
           We note that an Anders brief was originally filed in this case. See Anders v. California, 386 U.S. 738 (1967). Upon
determining that this appeal was not frivolous, we abated the appeal and remanded the cause for the appointment of new counsel.
The issues referenced in this opinion are from the brief filed by the appellate counsel that was appointed on remand.
counsel’s motion to withdraw. Appellant complains in his third issue of the trial court’s failure
to instruct the jury on the lesser offense of criminally negligent homicide and in his fourth issue
of the trial court’s charge on felony murder. In his final issue, appellant contends that he was
deprived of his right to due process by the “exceedingly contaminated crime scene.”
       We review a challenge to the sufficiency of the evidence, regardless of whether it is
denominated as a legal or a factual sufficiency claim, under the standard of review set forth in
Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet. ref’d).
Under the Jackson standard, we examine all of the evidence in the light most favorable to the
verdict and determine whether, based on that evidence and any reasonable inferences from it, any
rational trier of fact could have found the essential elements of the offense beyond a reasonable
doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
When the sufficiency claim involves self-defense, we must also determine whether any rational
trier of fact could have found against appellant on the self-defense issue beyond a reasonable
doubt. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). Once a defendant
produces evidence raising the issue of self-defense, the State has the burden of persuasion (not
production) to refute the self-defense claim, which requires only that the State prove its case
beyond a reasonable doubt. Id. at 913; see TEX. PENAL CODE ANN. § 2.03 (West 2011).
       Appellant admits that he stabbed his 27-year-old son, Michael Todd McMullen (the
victim), but appellant contends that he acted in self-defense. It is undisputed that the victim died
as a result of the stab wounds inflicted by appellant.
       The stabbing occurred inside the residence where appellant, Wendy O’Conner, and the
victim lived. O’Conner was appellant’s girlfriend, but she had been having an affair with the
victim for about a year. Although O’Conner testified that appellant was not aware that she and
the victim were having an affair, it is apparent from appellant’s statements at the scene and
during a videotaped police interview that appellant suspected that O’Conner and the victim were
romantically involved. In State’s Exhibit No. 22, appellant tells O’Conner, “Your boyfriend
done hit me with a f-----g gun.” During his interview, appellant referred to the victim as
“loverboy” and also said that he thought O’Conner and the victim “were f-----g.”
       On the night of the stabbing, appellant, O’Conner, and the victim were drinking alcoholic
beverages, which generally created a volatile situation. Appellant and the victim were both

                                                  2
intoxicated. The victim got mad about something while they were at a bar called Strawberry’s,
but neither appellant nor O’Conner knew what caused the victim to become angry. They left
Strawberry’s around midnight. O’Conner testified that, on the way home, appellant got a little
upset with her for taking up for the victim. When they got home, O’Conner began cooking
breakfast burritos. Appellant was in the living room watching television and making sarcastic
comments to O’Conner. O’Conner went into the living room, where she and appellant argued,
“cussing each other.” Appellant threw the remote across the room, and the argument between
appellant and O’Conner intensified. Appellant got up and walked to the master bedroom, but the
argument continued. While O’Conner was standing in the doorway of that bedroom, appellant
grabbed her from behind and, according to O’Conner, started choking her. The victim then got
involved; he walked toward appellant and O’Conner and told appellant to stop.
       Evidence showed that the victim had stabbed appellant during an altercation the
preceding year and that, just hours before the instant offense, appellant had given the victim a
Smith & Wesson switchblade knife as an early Christmas present. O’Conner testified that, when
the victim told appellant to let O’Conner go, appellant asked the victim, “[W]hat are you going
to do, stab me?” The victim replied, “[N]o, we’re not going to do that this time.” The victim
took his knife and cell phone out of his pocket and handed them to O’Conner. Appellant and the
victim “had words,” but O’Conner did not hear either of them threaten the other. This type of
argument was common in their household.
       O’Conner testified that the victim went outside and that she asked appellant to leave.
Appellant refused. The victim came back inside and walked to the back bedroom, possibly
slamming the door. Appellant said, “[F]--k this s--t. I’m not dealing with it.” Appellant headed
into the back bedroom, and O’Conner went outside to call 911. While on the phone, O’Conner
heard a window break. Then she saw the victim coming out of the back bedroom; he was “crab
crawling”—on his hands and feet crawling backwards. O’Conner heard the victim ask appellant,
“[W]hy did you stab me?” O’Conner helped the victim up, and they walked to the street, where
the victim collapsed.
       Officer David Cox was rounding the corner about that time.               Other officers and
emergency personnel arrived shortly thereafter. The victim was still alive, and efforts were made
to save his life. The victim was transported to the hospital, where he died a short time later.



                                                 3
       The autopsy revealed that the victim had been stabbed three times: twice in the abdomen
and once in the thigh. The fatal wound was to the lower abdomen; it severed the iliac artery and
was the major source of internal bleeding. The medical examiner, Dr. Nizam Peerwani, testified
that the victim’s abdominal cavity was filled with approximately five pints of blood from the
internal bleeding. None of the knives located at the scene could be identified as the murder
weapon. O’Conner maintained that appellant carried a knife in his pocket like the one he gave
the victim and that appellant had sharpened his knife that evening. Appellant initially told
officers that he did not have a knife like that or a pocket knife of any sort. He later told officers
that he used to have a knife similar to the one he gave the victim but that he had sold it to a
coworker in Laredo. Officers searched the area around the crime scene but did not find the knife
that O’Conner attributed to appellant.
       Appellant maintained that the victim attacked him and that he was merely defending
himself from the victim. Appellant said that, as appellant walked around the corner, the victim
hit him in the face with the butt of an air rifle (a pump-type BB gun that belonged to O’Conner’s
young son). Appellant said that he fell back or backed into the kitchen, grabbed “something”
from the kitchen counter, and defended himself. He only remembered stabbing the victim one
time and said he dropped the knife in the kitchen. The police found no physical evidence of any
scuffle occurring in the kitchen, which was small; there were things sitting out, undisturbed, on
the kitchen counter that would have been easily disturbed.
       When police arrived, appellant had an open wound on his face that was bleeding. The
evidence showed that the wound on appellant’s face was consistent with appellant’s explanation
and that an air rifle was found lying on the floor in the back bedroom. Before the fight, the air
rifle had not been lying on the floor; O’Conner had put it between the window and the
entertainment center in the back bedroom when she cleaned that room. After appellant arrived at
the police station, Detective Jeffery Guy Bell documented other minor injuries on appellant’s
arms, elbow, chest, and neck. Appellant was not sure how these injuries occurred.
       Section 9.32 of the Penal Code provides in relevant part that a person is justified in using
deadly force against another (1) if he would be justified in using force under Section 9.31 and
(2) when and to the degree he reasonably believes the deadly force is immediately necessary to
protect himself against the other’s use or attempted use of unlawful deadly force. TEX. PENAL
CODE ANN. §§ 9.31, 9.32(a)(1), 9.32(a)(2)(A) (West 2011). From the evidence presented at trial,

                                                 4
a rational jury could have found that appellant’s use of deadly force was not justified because the
jury disbelieved appellant’s version of the events in light of various inconsistencies, because
appellant’s belief that deadly force was immediately necessary to protect himself was not a
reasonable belief, or because the victim had not attempted to use deadly force against appellant.
After reviewing all of the evidence, we hold that a rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt and also could have found against
appellant on the self-defense issue beyond a reasonable doubt.            Appellant’s first issue is
overruled.
       In his second issue, appellant contends that the trial court abused its discretion when it
denied, without a hearing, trial counsel’s motion to withdraw. In the motion, trial counsel
asserted that good cause existed for withdrawal because trial counsel had represented the victim
in 1998 when the victim had been charged with aggravated assault with a deadly weapon. Trial
counsel stated that there was a “likelihood of potential conflict of interest in zealously advocating
for Defendant in presenting evidence of the decedent’s propensity for violence on prior
occasions.” The record shows that trial counsel filed the motion to withdraw as counsel less than
two weeks prior to the trial and over one year after being appointed to represent appellant. The
trial court denied the motion. There is no record of any hearing on the motion. The record
shows that trial counsel filed a motion in limine regarding any mention of him representing the
victim. The trial court granted the motion in limine, and the subject was not discussed again.
       We find no error in the trial court’s failure to conduct a hearing on counsel’s motion to
withdraw under the circumstances of this case. Trial counsel did not file the motion in a timely
fashion. See King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000) (stating that the right to
counsel may not be manipulated so as to obstruct the judicial process or interfere with the
administration of justice). Nor did trial counsel allege facts indicating that there was a conflict of
interest. Generally, when the defense brings a potential conflict of interest to the attention of the
trial court, the trial court has an obligation to investigate and determine “whether the risk [of the
conflict of interest is] too remote to warrant separate counsel.” Holloway v. Arkansas, 435 U.S.
475, 484 (1978). Trial counsel’s prior representation of the murder victim did not conflict with
or in any manner hinder counsel’s representation of appellant. See Harrell v. State, No. 12-00-
00356-CR, 2002 WL 31656213 (Tex. App.—Tyler Nov. 26, 2002, pet. ref’d) (not designated for



                                                  5
publication).   Trial counsel did, in fact, introduce evidence of the victim’s propensity for
violence and of the victim’s aggressive nature. Appellant’s second issue is overruled.
        In his third issue, appellant contends that he suffered egregious harm from the trial
court’s failure to instruct the jury on the lesser offense of criminally negligent homicide.
Appellant acknowledges that he did not request such a charge or object to its omission. A trial
court has no sua sponte duty to include a jury charge on a lesser included offense. Because
appellant did not object to the omission of a charge on criminally negligent homicide or request
its inclusion, appellant did not preserve this issue for review. Kinnamon v. State, 791 S.W.2d 84,
95 (Tex. Crim. App. 1990), overruled on other grounds by Cook v. State, 884 S.W.2d 485, 491
(Tex. Crim. App. 1994); Thomas v. State, 701 S.W.2d 653, 656 (Tex. Crim. App. 1985);
Castellon v. State, 297 S.W.3d 813, 815 (Tex. App.—Amarillo 2009, pet. ref’d). Appellant’s
third issue is overruled.
        In the fourth issue, appellant contends that he suffered egregious harm from the inclusion
of a “felony murder charge” in the trial court’s charge to the jury. While we agree that it would
have been erroneous to include a charge on felony murder in this case, our review of the jury
charge reveals that no felony murder charge was included. The elements of the offense of
murder are set out in TEX. PENAL CODE ANN. § 19.02(b) (West 2011). Felony murder refers to
the commission of murder as set out in Section 19.02(b)(3). Contreras v. State, 312 S.W.3d 566,
583–84 (Tex. Crim. App. 2010). The indictment and the jury charge in this case included the
elements of murder as set out in Section 19.02(b)(1) and Section 19.02(b)(2), not Section
19.02(b)(3). Appellant’s fourth issue is overruled.
        In his final issue, appellant contends that he was deprived of his right to due process by
the sloppy police work and the exceedingly contaminated crime scene. Appellant does not
suggest any bad faith on the part of the officers; instead, he points to the failure of the police to
immediately secure the scene, to O’Conner entering the house while appellant and the officers
were outside, to Officer Tyson Kropp washing his hands in the kitchen sink, and to the failure of
the police to seize the air rifle and have it tested for appellant’s blood.
        The officers involved in this case admitted at trial that they had made mistakes in this
case. The officers did not secure the crime scene until they learned of the victim’s death.
However, when the police arrived at the scene, the victim was still alive and their concern was to



                                                   6
help him. Officer David Cox explained that that is why he sent O’Conner into the house to get
some towels. O’Conner testified that she did not disturb anything when she went inside.
       Officer Kropp had to forcibly subdue appellant to take him into custody. During the
struggle, appellant’s blood (presumably from the bleeding wound on his face) got on Officer
Kropp’s hands. Appellant subsequently informed the officers that he had hepatitis C. Concerned
about being exposed to hepatitis C, Officer Kropp went into the house and washed his hands in
the kitchen sink. The scene was later secured, and a knife from the kitchen sink was taken into
evidence. That knife, however, was excluded by Dr. Peerwani as the murder weapon because
the blade was too small to have made the stab wounds and because it was serrated.
       We cannot hold under the circumstances of this case that the crime scene was so
contaminated or the police work so sloppy as to deprive appellant of his right to due process.
There is no indication that the officers acted in bad faith or that any of the evidence not preserved
was potentially exculpatory or potentially useful. See Ex parte Napper, 322 S.W.3d 202, 229–40
(Tex. Crim. App. 2010). Appellant’s fifth issue is overruled.
       The judgment of the trial court is affirmed.




                                                              JIM R. WRIGHT
                                                              CHIEF JUSTICE
May 31, 2012
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.


Published per motion granted June 28, 2012.




                                                 7
