                                                                            ACCEPTED
                                                                       01-14-00536-CR
                                                             FIRST COURT OF APPEALS
                                                                     HOUSTON, TEXAS
                                                                   1/9/2015 2:38:22 PM
                                                                  CHRISTOPHER PRINE
                                                                                CLERK

                      NO. 01-14-00536-CR

                IN THE COURT OF APPEALS            FILED IN
                                            1st COURT OF APPEALS
        FOR THE FIRST JUDICIAL DISTRICT OF TEXASHOUSTON, TEXAS
                       AT HOUSTON           1/9/2015 2:38:22 PM
                                                CHRISTOPHER A. PRINE
                                                      Clerk

DENNIS ROY REDDING               §              APPELLANT
                                 §
VS.                              §
                                 §
THE STATE OF TEXAS               §              APPELLEE



             APPEAL FROM CAUSE NO. 12CR2363
               IN THE 212TH DISTRICT COURT
              OF GALVESTON COUNTY, TEXAS


                     APPELLANT’S BRIEF




                                 SCHNEIDER & MCKINNEY, P.C.

                                 STANLEY G. SCHNEIDER
                                 Texas Bar No. 17790500
                                 440 Louisiana, Suite 800
                                 Houston, Texas 77002
                                 (713) 951-9994 (Office)
                                 (713) 224-6008 (Fax)
                                 stans3112@aol.com (Email)


                                 ATTORNEY FOR APPELLANT

APPELLANT REQUESTS ORAL ARGUMENT
                                   Identity of Parties and Counsel

      The following is a complete list of all parties to the trial court’s judgment,
and the names and addresses of all trial and appellate counsel:

Dennis Roy Redding . ................................................................................. Appellant


State of Texas ............................................................................................... Appellee


Stanley G. Schneider ...................................... Appellant’s Retained Counsel at Trial
440 Louisiana, Suite 800
Houston, Texas 77002

Casey Gotro . .................................................. Appellant’s Retained Counsel at Trial
440 Louisiana, Suite 800
Houston, Texas 77002

Jennifer Ott........................................................... Assistant District Attorney at Trial
600 59th Street, Suite 1001
Galveston, Texas 77551

William D. Reed . ................................................ Assistant District Attorney at Trial
600 59th Street, Suite 1001
Galveston, Texas 77551

Stanley G. Schneider ................................. Appellant’s Retained Counsel on Appeal
440 Louisiana, Suite 800
Houston, Texas 77002

Rebecca Klaren . ............................................. Assistant District Attorney on Appeal
600 59th Street, Suite 1001
Galveston, Texas 77551

Hon. Bret Griffin ...................................................................................... Trial Judge



                                                          ii
                                                         Contents

                                                                                                                          Page

Identity of Parties and Counsel. ................................................................................ ii

Table of Contents..................................................................................................... iii

List of Authorities. ................................................................................................... iv

Statement of the Case................................................................................................ 1

Issues Presented. ....................................................................................................... 1

          Issue One: The trial court erred in submitting a voluntary intoxication
          instruction pursuant to section 8.04 (a) of the Penal Code in the
          absence of evidence from any source that might lead a jury to
          conclude that the defendant’s intoxication somehow excused his
          actions.

          Issue Two: The trial court erred in refusing to provide an instruction
          guiding the jury in the proper application of the section 8.04 (a) of the
          Penal Code.

          Issue Three: The trial court erred in overruling Appellant’s objections
          to the State’s closing argument at guilt-innocence which misstated the
          scienter element as applying to the nature of the conduct rather than
          the result.

Summary of the Arguments. ..................................................................................... 2

Facts. ......................................................................................................................... 3

Arguments and Authorities. .................................................................................... 13

    Issues One and Two: Jury Charge Error. .......................................................... 13

         A.         Facts. .................................................................................................. 13

                                                               iii
         B.        Standard of Review. ........................................................................... 14

         C.        The voluntary intoxication charge was error
                   because it was not warranted by the evidence. .................................. 14

         D.        The unwarranted instruction caused some degree of harm. ............... 21

         E.        The trial court erred in failing to submit the requested
                   instruction explaining the application of section 8.04 (a). . ............... 25

         F.        The failure to submit an explanatory application instruction
                   caused some degree of harm. .............................................................. 33

    Issue Three: Jury Argument.............................................................................. 36

         A.        Facts. .................................................................................................. 36

         B.        Standard of Review. ........................................................................... 37

         C.        The argument was improper because it misstated the law. ................ 38

         D.        The improper argument affected Appellant’s substantial rights. ....... 41

Prayer. ..................................................................................................................... 46

Certificate of Service. ............................................................................................. 47

Certificate of Compliance. ...................................................................................... 48




                                                              iv
                                                 List of Authorities


Cases                                                                                                                    Page

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984)............................ passim

Barrios v. State, 283 S.W.3d 348 (Tex. Crim. App. 2009)..................................... 14

Bartlett v. State, 270 S.W.3d 147 (Tex. Crim. App. 2008)..................................... 20

Brown v. State, 122 S.W.3d 794 (Tex. Crim. App. 2003). ..................................... 20

Burd v. State, 404 S.W.3d 64 (Tex. App.–Houston [1st Dist.] 2013, no pet.)........ 35

Burke v. State, 652 S.W.2d 788 (Tex. Crim. App. 1983). .......................... 38, 40, 45

Cf. Rudd v. State, 921 S.W.2d 370 (Tex. App.-Texarkana 1996, pet. ref’d). ......... 42

Cook v. State, 884 S.W.2d 485 (Tex. Crim. App. 1994). ....................................... 39

Dana v. State, 420 S.W.3d 158 (Tex. App.– Beaumont 2012, pet. ref’d). ............. 18

Davis v. State, 313 S.W.3d 317 (Tex. Crim. App. 2010).................................. 15, 27

Davis v. State, 329 S.W.3d 798 (Tex. Crim. App. 2010) ....................................... 37

Delgado v. State, 235 S.W.3d 244 (Tex. Crim. App. 2007). .................................. 26

Dickson v. State, 642 S.W.2d 185 (Tex. App. – Houston [14th Dist.] 1982, pet.
ref’d). ...................................................................................................................... 44

Druery v. State, 225 S.W.3d 491 (Tex. Crim. App. 2007). ........................ 14, 21, 33

Eckert v. State, 672 S.W.2d 600 (Tex. App. –Austin 1984, pet. ref’d). ................. 40

Ex parte Chandler, 719 S.W.2d 602 (Tex. Crim. App. 1986).......................... 26, 32


                                                               v
Fisher v. State,
      397 S.W.3d 740 (Tex. App. – Houston [14th Dist.] 2013, no pet.)............... 18

Garza v. State, 829 S.W.2d 291 (Tex. App. – Dallas 1992, pet. ref’d). ................. 18

Gray v. State, 152 S.W.3d 125 (Tex. Crim. App. 2004)......................................... 26

Holmes v. State, 962 S.W.2d 663 (Tex. App. – Waco 1998, pet. ref’d, untimely
filed)........................................................................................................................ 42

Hutch v. State, 922 S.W.2d 166 (Tex. Crim. App. 1996). .......................... 15, 25, 31

Johnson v. State, 604 S.W.2d 128 (Tex. Crim. App. 1980).................................... 44

Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998).................................... 41

King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997). ........................................ 41

Lee v. State,
       971 S.W.2d 130 (Tex. App.- Houston [14th Dist.] 1998, pet. ref’d). .......... 45

Lewis v. State, 529 S.W.2d 550 (Tex. Crim. App. 1975)........................................ 44

Long v. State, 823 S.W.2d 259 (Tex. Crim. App. 1991)......................................... 38

Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997)........................................ 26

Martinez v. State, 17 S.W.3d 677 (Tex. Crim. App. 2000). ................................... 41

Mauldin v. State, 628 S.W.2d 793 (Tex. Crim. App. 1982). .................................. 41

McQueen v. State, 781 S.W.2d 600 (Tex. Crim. App. 1989). ................................ 38

Medford v. State, 13 S.W.3d 769 (Tex. Crim. App. 2000). .................................... 30

Mendoza v. State, 349 S.W.3d 273 (Tex. App. – Dallas 2011, pet. ref’d)........ 25, 35

Middleton v. State, 125 S.W.3d 450 (Tex. Crim. App. 2003). ............................... 30

                                                               vi
Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998). .............................. 42, 46

Peak v. State, 57 S.W.3d 14 (Tex. App. – Houston [14th Dist.] 2001, no pet.). .... 46

Plata v. State, 926 S.W.2d 300 (Tex. Crim. App. 1996). ....................................... 26

Raby v. State, 970 S.W.2d 1 (Tex. Crim. App. 1998)............................................. 27

Ramos v. State, 547 S.W.2d 33 (Tex. Crim. App. 1977)........................................ 27

Reeves v. State, 420 S.W.3d 812 (Tex. Crim. App. 2013)...................................... 33

Rodriguez v. State,
      --- S.W.3d ----, 2014 WL 7205226 (Tex. App. – Houston [1st Dist.] 2014,
      no pet.) (No. 01-12-00688-CR). ................................................................... 24

Rogers v. State, 105 S.W.3d 630 (Tex. Crim. App. 2003)...................................... 22

Ruiz v. State,
      766 S.W.2d 324 (Tex. App. – Houston [14th Dist.] 1989, no pet.)........ 30, 32

Sakil v. State, 281 S.W.3d 87 (Tex. App. – El Paso 2008)..................................... 29

Sakil v. State, 287 S.W.3d 23 (Tex. Crim. App. 2009).......................... 14, 17, 27-28

Schroeder v. State, 123 S.W. 3d 398 (Tex. Crim. App. 2003). .............................. 39

Scott v. State, 2009 WL 416513 at *8 (Tex. App. – Austin 2009, no pet.). ........... 31

Taylor v. State, 885 S.W.2d 154 (Tex. Crim. App. 1994). .......................... 15-16, 19

Thomas v. State,
     336 S.W.3d 703 (Tex. App. – Houston [1st Dist.] 2010, pet. ref’d). ........... 38

Thompson v. State, 89 S.W.3d 843 (Tex. App. – Houston [1st Dist.] 2002, pet.
ref’d). ...........................................................................................................................

Todd v. State, 598 S.W.2d 286 (Tex. Crim. App. 1980)......................................... 38

                                                               vii
Vasquez v. State, 389 S.W.3d 361 (Tex. Crim. App. 2012).................................... 26

Vernon v. State, 841 S.W.2d 407 (Tex. Crim. App. 1992). .................................... 30

Walters v. State, 247 S.W.3d 204 (Tex. Crim. App. 2008). ................................... 14

Webb v. State,
     36 S.W.3d 164 (Tex. App. – Houston [14th Dist.] 2000, pet. ref’d)............ 41

Whiting v. State, 797 S.W.2d 45 (Tex. Crim. App. 1990). ..................................... 38

Williams v. State, 547 S.W.2d 18 (Tex. Crim. App. 1977)............................... 15, 25

Williams v. State, 630 S.W.2d 640 (Tex. Crim. App. 1982)................................... 22

Yzaguirre v. State, 394 S.W.3d 526 (Tex. Crim. App. 2013). .......................... 26, 31

Statutes, Codes and Constitutional Provisions:

TEX. R. APP. P. 44.2(b)............................................................................................ 41

TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). .................................... 14, 26

TEX. PENAL CODE § 6.01..............................................................................................

TEX. PENAL CODE § 6.01 (a). .................................................................................. 22

TEX. PENAL CODE § 6.02 (b). .................................................................................. 22

TEX. PENAL CODE § 6.03 (a) (Vernon 1994). ......................................................... 40

TEX. PENAL CODE § 6.03 (b) (Vernon 1994).......................................................... 40

TEX. PENAL CODE § 6.03 (c) (Vernon 1994). ......................................................... 40

TEX. PENAL CODE ANN. § 6.03 (West 2011). ......................................................... 38

TEX. PENAL CODE § 8.04. ....................................................................................... 13

                                                        viii
TEX. PENAL CODE ANN. § 8.04 (a). ................................................................. passim

TEX. PENAL CODE ANN. § 8.04 (a) (West 2011)......................................... 13, 15, 27

TEX. PENAL CODE ANN. § 8.04 (b). ........................................................................ 15

TEX. PENAL CODE ANN. § 8.04 (c). ........................................................................ 15

TEX. PENAL CODE ANN. § 8.04 (d) (West 2011). ............................................. 13, 15

TEX. PENAL CODE ANN. § 19.02 (b)(1), (2) (Vernon 2003). .................................. 39

TEX. PENAL CODE ANN. § 19.04............................................................................. 39

TEX. PENAL CODE art. 39 (Vernon’s 1925). ........................................................... 22

TEX. PENAL CODE § 46.035. .................................................................................. 24

Other Authorities

Comm. on Pattern Jury Charges, State Bar of Tex., Texas Criminal Pattern Jury
Charges: Defenses § B6.3 (2013). ..................................................................... 28-29




                                                      ix
To the Honorable Justices of the Court of Appeals:

                             Statement of the Case

      Appellant Dennis Roy Redding was charged by indictment in cause number

12CR2363 with the first degree felony offense of murder, alleged to have occurred

on June 23, 2012. CR6. Appellant entered a plea of not guilty and a jury found him

guilty of the lesser-included offense of manslaughter. CR73. The jury assessed

punishment at 7 years imprisonment. CR138. Appellant filed a motion for new

trial, which was overruled by operation of law. CR157. Appellant filed timely

written notice of appeal. CR144.

                                   Issues Presented

      Issue One: The trial court erred in submitting a voluntary
      intoxication instruction pursuant to section 8.04 (a) of the Penal
      Code in the absence of evidence from any source that might lead a
      jury to conclude that the defendant’s intoxication somehow
      excused his actions.

      Issue Two: The trial court erred in refusing to provide an
      instruction guiding the jury in the proper application of the
      section 8.04 (a) of the Penal Code.

      Issue Three: The trial court erred in overruling Appellant’s
      objections to the State’s closing argument at guilt-innocence
      which misstated the scienter element as applying to the nature of
      the conduct rather than the result.




                                          1
                            Summary of the Arguments

      Issue One: The submission of a voluntary intoxication instruction pursuant

to section 8.04 (a) of the Texas Penal Code was error because there was no

evidence that Appellant’s intoxication was a causal factor in or an excuse for his

conduct.    The erroneous instruction caused some degree of harm, requiring

reversal, because it drew the jury’s attention to a particular piece of evidence and

conveyed an opinion regarding the validity of Appellant’s defense that the shooting

was accidental.

      Issue Two:      The trial court erred in failing to submit the requested

instruction explaining the application of section 8.04 (a). Merely instructing the

jury that voluntary intoxication is “not a defense” is insufficient to guide the jury in

the proper application of the abstract law to the facts. Section 8.04 (a) has acquired

an established legal meaning in that evidence of voluntary intoxication may not

serve to negate the culpable mental state of a crime but such evidence does not

relieve the State of its burden of proving each element beyond a reasonable doubt.

The error caused some degree of harm because the term “defense” is subjection to

misinterpretation if given a broad meaning used in common parlance. The jury

could have concluded that any conduct engaged in while intoxicated was legally




                                           2
indefensible, regardless of whether the defendant had the requisite mental state.

Accordingly, reversal is required.

      Issue Three: The trial court erred in overruling objections to the State’s

closing arguments misstating the applicable law at the guilt-innocence phase. The

State repeatedly argued that its burden was to prove intentional acts, when the jury

charge required the jury to find that Appellant intended the result of his conduct.

The improper argument affected Appellant’s substantial rights because it was

repeated with no curative instructions, it undermined Appellant’s defense that he

did not have the requisite intent for murder or manslaughter, and the evidence of

guilt was not overwhelming. Accordingly, reversal is required.

                                       Facts

      On June 23, 2012, Appellant shot and killed his best friend of 25 years,

Mark Holcomb. The issue at trial was whether the shooting was an accident.

      Holcomb, 61, was a husband, father, grandfather, and an oral surgeon with a

practice in Clear Lake. 3RR20-21. Holcomb met Appellant when their daughters

became friends as children. 3RR22. Appellant, formerly a Houston Police Officer,

was chief of security at NASA when they met. 3RR29. The two families became

very close. 7RR14. Appellant’s wife Joan Redding worked in Holcomb’s office for

many years and the couples joked that Joan was Holcomb’s “office wife.” 3RR22,


                                         3
82. The Holcomb children stayed with the Reddings when their parents traveled.

7RR13. Holcomb and Appellant shared an interest in hunting and fishing, and the

two couples took many vacations together.      3RR27. Holcomb and Appellant

briefly operated a tool rental business together. 3RR29-30. The two men remained

best friends throughout the course of their relationship. 3RR30-31. During visits

and vacations, Holcomb and Appellant often drank heavily and engaged in

horseplay. 3RR81.

      On Friday, June 22, 2012, Mark and Francine Holcomb went to their

weekend waterfront home in the gated community of Harborwalk in Hitchcock,

Texas. 3RR31. They had invited Appellant and his son-in-law Darren Schieffer to

stay at the house and go fishing on Saturday in Mark Holcomb’s boat. 3RR32.

Mark Holcomb met Appellant and Schieffer at the house around 3:00 p.m. and

Francine arrived around 5:00 p.m. 3RR41. The men prepared for the fishing trip

while Francine cooked dinner. 3RR42-43. Holcomb and Appellant began drinking

mid-afternoon; Holcomb drank beer and gin/tonic while Appellant drank whiskey

and coke. 3RR43, 160; 4RR13. Holcomb and Appellant spent a lot of time

reminiscing about prior trips. 4RR77.

      During the afternoon, the Holcomb’s daughter Ashley arrived with her

toddler daughter. 3RR44. Ashley’s husband Jonathon Contois and his brother Dan


                                        4
arrived during the evening. 3RR44. The family and guests ate dinner around 8:00

p.m. 3RR45. Appellant was intoxicated and refused to eat. 4RR21-22. After dinner

everyone gathered in an outdoor kitchen area with seating and continued drinking

and socializing. 8RR47. Appellant’s son-in-law Schieffer was the only adult

present who did not drink any alcohol. 3RR15, 19. Holcomb and Appellant

remained as the rest of the group gradually dispersed to go to bed. 3RR48.

      Around 9:30 p.m., three Harborwalk neighbors, Jeffrey Dolen, David Baggs,

and Gert Rohdes, stopped by and joined Holcomb and Appellant, and Francine

came back downstairs to visit with the neighbors. 3RR49. Appellant became very

intoxicated and made comments about how close he and Holcomb were. 3RR48.

Appellant also commented that if anything happened to Holcomb he would take

care of Francine, which was a long-standing joke or understanding between the

two couples. 3RR50-51. Francine did not take any offense or feel threatened by the

comment. 3RR51. The group socialized and drank until sometime after midnight

when Baggs and Rohdes helped Holcomb and Appellant get upstairs to bed.

4RR182. Baggs testified that Appellant was clearly intoxicated but able to walk.

4RR183.

      Jonathon Contois, who was sleeping on a sofa in a living room on the third

floor, testified that he was awakened by a noisy group on the stairs laughing.


                                         5
3RR131. He saw Holcomb, Appellant, Rohdes, and Baggs approaching a bedroom.

3RR132-133. Contois heard Appellant saying something to the effect of “Stop

fucking babying me” and that he felt bad that they had to help him. 3RR141. As

Rohdes and Baggs headed back downstairs, Holcomb stood in the doorway of the

bedroom facing into the room. 3RR172. Contois heard Holcomb say, “Dennis,

what are you doing?” 3RR134, 164. Baggs and Contois heard someone say, “Turn

off the light,” immediately followed by a gunshot. 3RR134, 164; 4RR186-187.

      Appellant’s son-in-law Darren Schieffer was the only eye-witness to the

shooting. Schieffer candidly testified that he had a strained relationship with his

father-in-law because of his drinking, and did not want to visit the Holcombs with

Appellant because he knew they drank heavily (Schieffer had quit drinking several

months earlier). 4RR19-20, 66. Schieffer was annoyed that the group was up late

drinking and concerned that the drinking would interfere with the fishing trip

planned for early the next morning. 4RR23. Schieffer testified that everyone else

was intoxicated that evening but Appellant was the most intoxicated. 4RR23-24.

Around 9:30 p.m. Schieffer showered and went to bed in the third-floor bedroom

he was to share with Appellant. 4RR24-26. Schieffer was awakened when

Appellant stumbled into the room. 4RR27-28. Schieffer heard Appellant say to

Holcomb, who was standing in the doorway, “You motherfuckers are treating me


                                         6
like a baby.” 4RR27-28. Appellant picked up his bag and put it on his bed and

rummaged through it. 4RR28. Holcomb turned on the light and asked Appellant

what he was looking for. 4RR29. Appellant said, with an irritated tone, “Turn off

the fucking light and go back to bed.” 4RR30. Holcomb turned off the bedroom

light and Schieffer saw, by the light coming from the hall, Appellant holding his

handgun in his left hand and facing the doorway.1 4RR30-32. Schieffer saw

Appellant walk towards Holcomb with the gun pointed at him while saying, “You

motherfuckers are treating me like a baby.” 4RR32-33. When Appellant got within

about two feet of Holcomb the gun went off, and Schieffer saw a look of shock on

Appellant’s face. 4RR32-33, 101.

       Immediately after the gunshot family members and guests converged on the

scene. Jonathon Contois saw Holcomb holding his side and saying, “Call 911, he

shot me”; “it was an accident”; and “he didn’t mean to do it.” 3RR136, 169.

Schieffer initiated a 911 call then gave the telephone to Ashley Holcomb. 4RR35-

42. Schieffer and Contois restrained Appellant and looked for the gun; Schieffer

found the gun in Appellant’s left pocket and retrieved it. 4RR35-42. When

Francine arrived Holcomb was calmly lying on the floor and told her that it was an

accident. 3RR55. Francine saw several men holding Appellant’s hands behind his


1 Appellant had a concealed handgun license. Appellant was left-handed but Schieffer had seen
Appellant shoot with both hands. 4RR32, 98.

                                             7
back and punching him. 3RR95-96. Francine stated, “Stop, that’s Mark’s friend,

stop.” 4RR46. Jeffrey Dolen heard Appellant say, “Let me up. It was an accident.

Let me up.” 4RR234.

      The gunshot wound would likely have been survivable if not for a

significant delay in medical treatment. 5RR77, 84. The paramedics were

dispatched at 12:57 a.m. but Holcomb did not arrive at the hospital until 2:15 a.m.

4RR13136, 170; 5RR48. The delay was caused by the remoteness of the location

and the paramedics’ lack of equipment needed to transport Holcomb down the

stairs. 4RR143-144. Holcomb was alert and oriented when he arrived at the

hospital and disclosed to the staff that the shooting was an accident. 5RR52, 55.

Holcomb underwent surgery but died from blood loss at 5:22 a.m. 5RR23, 46-47.

      The autopsy showed that the bullet entered the left side of Holcomb’s low

chest a few inches below the nipple and lodged under the skin on the right flank.

5RR14, 21. The left-to -right angle of the pathway indicated that the shooter did

not directly face Holcomb or that Holcomb turned to the right at the time of the

shot; the trajectory was not consistent with the shooter directly facing Holcomb

with the gun in his left hand. 5RR43, 72. The bullet was a hollow point, which is

designed to remain in the body and inflict more tissue damage. 5RR27.




                                        8
      The prosecution acknowledged that the investigation was grossly

mishandled by the Hitchcock Police Department. 8RR17. Patrol Officer Pruitt and

Sergeant Gonzalez arrived at the scene around 1:00 a.m. and found Appellant on

the floor with his hands secured behind his back with a belt. 7RR73-76. Sergeant

Bertolino arrived shortly thereafter and noted that everyone at the scene seemed

intoxicated.   6RR63-67. Gonzalez told Bertolino to transport Appellant to the

police station. 6RR67. Pruitt stayed by the bedroom to protect the crime scene until

the detective arrived. 7RR81.

      Gonzalez, as the primary officer, was responsible for identifying witnesses

and taking statements, but he could not recall if he instructed the witnesses present

not to leave the scene and not to discuss the shooting with each other. 7RR94, 126.

Ultimately, of the eight adult witnesses present, the only names Gonzalez collected

were Darren Schieffer and Francine Holcomb. 3RR147; 7RR126. Gonzalez

testified that Mark Holcomb was alert but Gonzalez chose not to talk to him

because family members were present and upset. 7RR118-119.

      Gonzalez conducted only one interview on the night of the shooting, with

Darren Schieffer, but the recording of the interview was lost or destroyed. 7RR79.

Standard Hitchcock PD procedure required officers to remove the secure digital

(SD) card from the in-car recorder and upload the contents onto the server at the


                                         9
station at the end of a shift. 6RR82-83. Gonzalez testified that he copied the video

onto a compact disk but could not recall what he did with it. 7RR101-103, 108,

115. Police records indicated that a copy of a video from Gonzalez’s vehicle was

submitted to the police property room by someone, but no one from the Hitchcock

PD knew what became of it. 7RR100-103, 170-176.

      Detective Pitre arrived at the scene around 1:40 a.m. to conduct a “scene

assessment”:   secure the scene, gather evidence, and conduct interviews with

witnesses. 6RR7-8, 41-42, 47. Despite being the department’s sole detective, Pitre

had no training in homicide or shooting investigations. 6RR41-42. Pitre found

three Hitchcock PD officers on the scene and numerous people gathered on the

second floor of the house. 6RR46. Pitre acknowledged that standard procedures

required responding officers to immediately separate witnesses and to conduct

interviews timely so that the witnesses’ memories would not be contaminated.

6RR44-45.

      Pitre took five photographs of the bedroom with tent markers showing the

location of a gun holster and a shell casing, but took no measurements of the scene.

6RR14-15, 33-34; SX27-31. He then intended to begin the interview process but

discovered that all the witnesses had left. 6RR15. Pitre acknowledged that it was

his responsibility to obtain witness statements on the day of the incident. 6RR53.


                                         10
      Officer Pruitt testified that he put on gloves and retrieved the gun from the

pocket of an unidentified witness, while Sergeant Gonzalez recalled Schieffer

handing Pruitt the gun. 4RR47; 7RR80-81, 124. Detective Pitre could not recall if

he requested fingerprint analysis of the gun. 6RR61.

      None of the officers found or collected Holcomb’s shirt. 7RR79, 110. The

medical examiner testified that clothing can be analyzed for soot particles to

determine the range of fire, but that Holcomb’s shirt had been removed before he

was admitted to the hospital. 5RR57-59.

      At the station Sergeant Gonzalez instructed Bertolino to bag Appellant’s

hands for gunshot residue testing, after Appellant’s hands had already been

handcuffed together for some period of time. 6RR79. The bag was not applied

securely and repeatedly fell off as Appellant sat with his hands cuffed behind him.

SX35. Pitre swabbed Appellant’s hands for gunshot residue and forwarded the kit

to the DPS Crime Lab, but was later informed by the lab that testing could not be

done because the kit used by Pitre was obsolete and no longer accepted. 6RR16-18.

The Hitchcock PD did not have any of the new kits, despite having been notified

two years prior of the change. 6RR18, 36. Pitre acknowledged that GSR and

fingerprint testing are important because it might indicate which hand held the gun.

6RR36, 57-61.


                                          11
      Appellant was Mirandized and repeatedly stated that the shooting was an

accident. 6RR80, 89-90; SX35. Appellant also repeatedly asked the police about

Holcomb’s welfare. SX35. Appellant stated in a telephone call to his wife that the

accident happened when he was using the laser on the gun. SX35.

      There was a significant delay in conducting interviews with witnesses.

Francine and Ashley Holcomb were interviewed by police on June 28. 3RR110-

111; 6RR23. Jeffrey Dolen was interviewed on July 5. 6RR25. David Baggs and

Jonathon Contois were interviewed at the end of July. 3RR156-158; 6RR25-26.

Gert Rohdes and Darren Schieffer were interviewed in August. 6RR26-27.

Detective Pitre claimed that scheduling issues caused the delays. 6RR27. The delay

allowed the witnesses to compare stories before providing a statements. For

example, Schieffer testified that he heard some of the family and guests saying that

it was an accident and told them, based on what he had seen, it was not an accident.

4RR53. Both Officer Pruitt and Sergeant Gonzalez testified that Francine initially

told them the shooting was an accident, but Francine testified that she changed her

mind after talking to Schieffer. 3RR56-57, 117-118; 7RR79-80, 120.

      Schieffer spoke with Appellant several months after the shooting and

Appellant told him that he did not mean to shoot Holcomb; he was just trying to

point the gun’s laser at Holcomb. 4RR54. Appellant told Schieffer that he thought


                                        12
the laser was trigger-activated. 4RR54. The button for the laser was actually on the

grip just underneath the trigger guard. 4RR55.

                           Arguments and Authorities

                    Issues One and Two: Jury Charge Error

      A.    Facts

      The jury was instructed on voluntary intoxication at the request of the State.

8RR4. The instruction tracked the language of section 8.04 of the Penal Code:

            Voluntary intoxication does not constitute a defense to
            the commission of a crime. Intoxication means
            disturbance to mental or physical capacity resulting from
            the introduction of any substance into the body.

CR65; TEX. PENAL CODE ANN. 8.04 (a), (d) (West 2011). Appellant objected to

instruction on two grounds. First, the instruction was not warranted because there

was no evidence, nor argument, that the intoxication was not voluntary or that it

caused or excused the conduct. 8RR4-9. Second, the instruction omitted an

application paragraph explaining that evidence of voluntary intoxication did not

negate the State’s burden of proving all the elements beyond a reasonable doubt.

8RR10. Appellant requested the following application paragraph:

            Evidence of the defendant’s intoxication, if any, does not
            negate the elements of intent or knowledge or recklessly
            or the State’s burden to prove the defendant’s intent,
            knowledge or recklessness, as those terms has [sic] been
            defined, beyond a reasonable doubt.

                                        13
8RR10. The trial court denied the objection and the requested instruction. 8RR9-

10.

      B.     Standard of Review

      To review claims of jury charge error, an appellate court must first ask

whether there was error in the charge. Barrios v. State, 283 S.W.3d 348, 350 (Tex.

Crim. App. 2009). If there was error and if the appellant objected to the error at

trial, “reversal is required if the error is ‘calculated to injure the rights of [the]

defendant,’ ” meaning that “there must be some harm to the accused from the

error.” Sakil v. State, 287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009) (quoting

Almanza v. State, 686 S.W.2d 157, 161 (Tex. Crim. App. 1984). “[A]ny harm,

regardless of degree, is sufficient to require reversal.” Druery v. State, 225 S.W.3d

491, 504 (Tex. Crim. App. 2007).

      C.     The voluntary intoxication charge was error because it was not
                  warranted by the evidence.

      Under Texas law, the trial court must provide the jury with “a written charge

setting forth the law applicable to the case; not expressing any opinion as to the

weight of the evidence, not summing up the testimony, discussing the facts or

using any argument in [its] charge calculated to arouse the sympathy or excite the

passions of the jury.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007);

Walters v. State, 247 S.W.3d 204, 208 (Tex. Crim. App. 2008). The function of a

                                         14
jury charge is not “merely to avoid misleading or confusing the jury,” but “to lead

and to prevent confusion.” Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App.

1996) (quoting Williams v. State, 547 S.W.2d 18, 20 (Tex. Crim. App. 1977)).

       Section 8.04 of the Penal Code provides in relevant part:

               (a) Voluntary intoxication does not constitute a defense
               to the commission of a crime.
                                         * * *
               (d) For purposes of this section “intoxication” means
               disturbance of mental or physical capacity resulting from
               the introduction of any substance into the body.

TEX. PENAL CODE ANN. 8.04 (a), (d) (West 2011).2 The provision has been

interpreted to mean that evidence of voluntary intoxication “will not excuse a

defendant’s actions,” Taylor v. State, 885 S.W.2d 154, 156 (Tex. Crim. App.

1994), or “rebut a defendant’s mental culpability.” Davis v. State, 313 S.W.3d 317,

329–30 (Tex. Crim. App. 2010). A defendant need not expressly rely upon

intoxication as a defense in order to implicate this provision. Taylor at 158. But the

instruction is appropriate only “if there is evidence from any source that might lead

a jury to conclude that the defendant’s intoxication somehow excused his actions.”

Id.




2 Subsections (b) and (c) address substance-induced temporary insanity as a mitigating factor during
the punishment phase and as the subject of a jury charge. TEX. PENAL CODE ANN.
§ 8.04(b) & (c) (Vernon 2003). Subsections (b) and (c) are not at issue in this case.

                                                15
       In Taylor, the defendant, who suffered from paranoid schizophrenia, was

convicted of murdering her four-year-old daughter after pleading not guilty by

reason of insanity.3 Id. at 155. The defendant asserted that the section 8.04 (a)

instruction should not have been given because she had not claimed that her

intoxication caused her insanity or otherwise excused her actions. Id. at 158. The

evidence showed that the defendant smoked marihuana within a few hours of the

offense, and that it caused her to feel and act differently and to lose control of her

temper. Id. The defendant testified that as soon as she smoked the marihuana she

“started feeling funny,” began “laughing and crying at the same time,” felt a

“sudden flash of anger” toward her daughter, and told her that she was going to kill

her. Id. Additionally, an expert testified that marihuana use by a schizophrenic

could trigger a psychotic episode and that in his opinion defendant’s marihuana use

on the night of the offense “markedly” affected her control over her temper. Id.

The Court rejected the argument that the defendant must assert intoxication as a

defense:

               We do not believe that a defendant needs to rely upon
               intoxication as a defense in order to implicate this

3 The application of the voluntary intoxication statute is the same in cases involving an insanity
defense. The Court of Criminal Appeals has held that, if a pre-existing mental condition does not
“in and of itself” render the accused “legally insane,” “then the recent use of intoxicants causing
stimulation or aggravation of the pre-existing condition to the point of insanity cannot be relied upon
as a defense to the commission of the crime itself.” Evilsizer v. State, 487 S.W.2d 113, 116 (Tex.
Crim. App. 1972).

                                                  16
             provision. Rather, if there is evidence from any source
             that might lead a jury to conclude that the defendant’s
             intoxication somehow excused his actions, an instruction
             is appropriate. In the instant case, where the defendant
             was asserting a defense of insanity in excuse of her
             actions, but there was also evidence, albeit slight, that her
             actions could have been precipitated by her marihuana
             use, the Court of Appeals did not err in holding that the
             instruction was properly given.

Id. at 158. Notably, the Court did not hold that the instruction is permissible

whenever there is evidence of intoxication; instead, the evidence must be such that

a jury could infer that it excused the conduct. Because the evidence suggested not

simply that the defendant was intoxicated but that the defendant’s intoxication

“precipitated” her actions, the instruction was warranted.

      In Sakil v. State, 287 S.W.3d 23 (Tex. Crim. App. 2009), an assault case, the

court found that an 8.04 (a) instruction was proper based on evidence from two

sources. Id. at 25- 27. The complainant testified that the defendant was not

intoxicated but also testified that he behaved oddly during the fight: he was

restless, was not being “himself,” and he believed that he was being followed. Id.

Additionally, the defendant called a psychiatrist and elicited testimony specifically

suggesting a causal relationship between his drug abuse history and strange

behavior at the time of the offense. Id. In finding the instruction proper, the Court

pointed out that the defendant “elicited from his own witness [testimony] relating


                                          17
to Appellant’s ‘lengthy’ history of drug abuse,” and also “went so far as to suggest

a link between the drug use and Appellant’s symptoms on the date of the offense”

Id. at 27.

       In Fisher v. State, 397 S.W.3d 740 (Tex. App. –Houston [14th Dist.] 2013,

no pet.), the defendant pleaded not guilty to assault by reason of insanity. Id. at

742. The court found that a section 8.04 (a) instruction was appropriate because the

defense psychiatric expert testified that alcohol ingestion could have affected the

defendant’s bipolar disorder, and evidence from multiple sources showed that the

defendant drank alcohol prior to the offense. Id. at 746-47. See also Garza v. State,

829 S.W.2d 291, 295-96 (Tex. App.-Dallas 1992, pet. ref’d) (voluntary

intoxication instruction properly given in murder prosecution where defense expert

testified that defendant’s use of a prescription drug could cause violent behavior);

Dana v. State, 420 S.W.3d 158, 166-68 (Tex. App.– Beaumont 2012, pet. ref’d)

(instruction proper in aggravated assault case where defense was insanity; evidence

showed that defendant was “real high up on something” and defense elicited expert

testimony that methamphetamine use could exacerbate the defendant’s underlying

schizophrenic illness).

       In each of these cases, there was affirmative evidence that intoxication could

have triggered, precipitated, or contributed to the conduct at issue. Additionally,


                                         18
this type of evidence linking intoxication to the conduct was elicited by the

defense. While evidence warranting the instruction may come “from any source,”

Taylor at 158, when such evidence is elicited by the defense it is more likely to

“lead a jury to conclude that the defendant’s intoxication somehow excused his

actions.” Id. In the instant case, the defense never elicited any testimony or made

any argument suggesting any link between Appellant’s intoxication and his firing

of the gun. In fact, there was no evidence from any source suggesting that

intoxication precipitated the shooting. Numerous witnesses testified that Appellant

and Holcomb characterized the shooting as an accident, but none of the witnesses

gave testimony suggesting that the accident occurred because of Appellant’s

intoxication. In fact, Appellant’s son-in-law Schieffer, who was familiar with

Appellant’s drinking habits and was the sole eye-witness to the shooting, testified

unequivocally that it was not an accident (4RR53, 66). Schieffer also testified that

Appellant’s explanation – that he accidentally fired the weapon when he was

attempting to activate the laser – was not credible in light of Appellant’s

experience with firearms (4RR32, 50-51, 98). Accordingly, the issue before the

jury was whether Appellant meant to fire the weapon, and neither side elicited

evidence suggesting that intoxication factored into this issue.




                                          19
       Because the evidence did not warrant the instruction, its inclusion

constituted an improper comment on the weight of the evidence. A trial court

improperly comments on the weight of evidence by singling out evidence in its

general instructions to the jury. Bartlett v. State, 270 S.W.3d 147, 152 (Tex. Crim.

App. 2008). A trial court’s focus on particular evidence has the potential to

“obliquely or indirectly convey some [judicial] opinion on the weight of the

evidence by singling out that evidence and inviting the jury to pay particular

attention to it.” Id. In Bartlett, the trial court instructed the jurors at the conclusion

of the guilt phase of Bartlett’s trial for driving while intoxicated that they were

permitted to consider the fact that he refused to submit to a breath test. Id. While

the instruction used seemingly neutral language, it improperly singled out a

particular piece of evidence for special attention. Id.; see also Brown v. State, 122

S.W.3d 794, 802 (Tex. Crim. App. 2003) (holding that instruction in original

charge informing jury that “intent or knowledge may be inferred by acts done or

words spoken” was comment on weight of evidence because it “focus[ed] the

jury’s attention on the type of evidence that may support a finding of criminal

intent.”).

       Because there was no evidence suggesting a link between Appellant’s

intoxication and the shooting, the voluntary intoxication instruction improperly


                                           20
conveyed a judicial opinion regarding the importance of the evidence of

intoxication. Accordingly, the trial court erred in submitting the instruction.

      D.     The unwarranted instruction caused some degree of harm.

      Because Appellant preserved his complaint, the Court must reverse if the

error resulted in any harm, regardless of degree. Almanza, 686 S.W.2d at 161,

Druery, 225 S.W.3d at 504. To gauge harm, the court reviews (1) the entire jury

charge; (2) the state of the evidence, including the contested issues and weight of

probative evidence; (3) the argument of counsel; and (4) any other relevant

information revealed by the record of the trial as a whole. Id. These factors require

a finding of harm in this case.

      Nothing in the jury charge served to neutralize the error. The voluntary

intoxication instruction was the only language in the charge addressing defenses.

Appellant’s sole defense was that the shooting was accidental and occurred when

he was attempting to activate the laser. Providing the voluntary intoxication

instruction, in the absence of supporting evidence, conveyed to the jury that

Appellant was attempting to rely on intoxication as a defense or as the basis for his

defense of accident, and effectively instructed the jury that neither was legally

viable.




                                          21
         This inference seriously undermined Appellant’s defense in light of the

absence of an instruction addressing the defense of accident. The former penal

code provided for a “defense of accident,” under which “[n]o act done by accident

is an offense,” except for certain offenses satisfied by proof criminal negligence.

Rogers v. State, 105 S.W.3d 630, 636 (Tex. Crim. App. 2003); TEX. PENAL CODE

art. 39 (Vernon’s 1925). This defense was applied to a range of situations,

including voluntary conduct that resulted in an unintended or unexpected result. Id.

at 637. In the current Code, the defense was replaced with section 6.01 (a),

requiring a volitional act, and section 6.02 (a), requiring proof of a culpable mental

state:    intentionally, knowingly, recklessly, or with criminal negligence. Id.

Accordingly, no instruction on the defense of “accident” is required because the

function of the former defense is performed by the requirement of proof of the

appropriate mental state. Id.; Williams v. State, 630 S.W.2d 640, 644 (Tex. Crim.

App. 1982). By instructing the jury that voluntary intoxication is not a defense,

when the defense never elicited evidence or argued that intoxication was causal

factor, the charge as a whole created a risk that the jury would conflate Appellant’s

defense of accident with the evidence of intoxication and find that the instruction

foreclosed a finding that the shooting was accidental. The unwarranted instruction




                                         22
amounted to a comment expressing an opinion on the validity of Appellant’s

defense.

      Considering the state of the evidence, including the contested issues and

weight of probative evidence, the State’s case was not so compelling as to

eliminate any possibility of harm. There was no evidence rationally supporting a

motive that might lead Appellant to harm his friend, but there was ample evidence

supporting Appellant’s claim of accident. Holcomb himself consistently

characterized the shooting as an accident, both to his family and to those providing

medical treatment (3RR55, 136, 169; 5RR52, 55). Appellant also maintained that

the shooting was accidental to witnesses immediately after the shooting (4RR234),

to the police (6RR80, 89-90; SX35), and to his family (4RR54). The only witness

who disagreed with this characterization was Appellant’s son-in-law Schieffer.

Schieffer testified that the shooting did not appear to be an accident, but his

description of the shooting was incompatible with the physical evidence: the

bullet’s trajectory refuted Schieffer’s testimony that Appellant held the gun in his

left hand (4RR30-32; 5RR43, 72). Conviction was not certain in the absence of the

erroneous instruction.

      The State took advantage of the instruction by repeatedly mentioning

Appellant’s intoxication in relation to the shooting during closing arguments. The


                                        23
State’s argument asked the jury to “focus on” Appellant’s intoxication (8RR18-

19), and repeatedly questioned why “an intoxicated Dennis Redding” or a “drunk

Dennis” felt the need to go get his gun (8RR20). These arguments were not

provoked by any defense arguments.

      In Rodriguez v. State, --- S.W.3d ----, 2014 WL 7205226 (Tex. App.-

Houston [1st Dist.] 2014, no pet.) (No. 01-12-00688-CR), the charge in a murder

prosecution improperly included an instruction based on section 46.035 of the

Penal Code, which defines the offense of unlawful carrying of a handgun by a

license holder. This instruction appeared within the self defense instruction,

effectively making self defense contingent on whether the defendant violated

section 46.035.     Id. at *9. The court of appeals found that the defendant was

harmed by the error because the defendant conceded that he shot the decedent and

his claim of self defense was thus “the very basis of the case.” Id. at *12. The

charge conveyed to jury the defendant’s failure to conceal a handgun, alone, would

render his use of force unjustified. Id. The errors were not cured by other

instructions or closing argument, the evidence on self defense was conflicting,

closing argument highlighted the issues addressed in the erroneous instructions,

and questions from the jury demonstrated that it focused on the erroneous

instructions during deliberations. Id. at *15.


                                           24
      In Mendoza v. State, 349 S.W.3d 273 (Tex. App. – Dallas 2011, pet. ref’d),

the trial court erred in submitting an instruction on provocation in a murder

prosecution because there was no evidence that the defendant’s acts actually

caused the decedent to attack the defendant, a required element of provocation. Id.

at 280. The court of appeals found the error harmful because the provocation

instruction’s presence in the jury charge implied that there was some evidence to

support every element of the provocation doctrine when there was not. Id. at 282.

Because the defendant admitted stabbing the decedent, his entire defense rested on

the theory of self defense; thus, any erroneous instruction that limited his self-

defense theory was likely to be harmful. Id. at 283.

      Likewise, in the instant case, the unwarranted instruction undermined

Appellant’s defense of accident by suggesting that Appellant’s defense was

contingent on intoxication and thus not valid. Because the Almanza factors favor a

finding of harm, reversal is required.

      E.     The trial court erred in failing to submit the requested instruction
                   explaining the application of section 8.04 (a).

      The function of a jury charge is not “merely to avoid misleading or

confusing the jury,” but “to lead and to prevent confusion.” Hutch, 922 S.W.2d at

170 (quoting Williams v. State, 547 S.W.2d 18, 20 (Tex. Crim. App. 1977)). The

trial court’s charge must fully instruct the jury on the law applicable to the case and

                                          25
apply that law to the facts adduced at trial. Gray v. State, 152 S.W.3d 125, 127

(Tex. Crim. App. 2004); see TEX.CODE CRIM. PROC. ANN. art. 36.14 (West 2007).

      The importance of an instruction explaining the application the abstract law

to the facts cannot be overstated. The purpose of the jury charge is to instruct the

jury on the law that applies to the case and to guide the jury in applying the law to

the facts of the case. Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App.

2007). Abstract or definitional paragraphs serve as a kind of glossary to help the

jury understand the meaning of concepts and terms used in the application

paragraphs of the charge. Plata v. State, 926 S.W.2d 300, 302 (Tex. Crim. App.

1996), rev’d on other grounds, Malik v. State, 953 S.W.2d 234 (Tex. Crim. App.

1997). But the application paragraph is the “heart and soul” of the jury charge.

Vasquez v. State, 389 S.W.3d 361, 367 (Tex. Crim. App. 2012). “The application

paragraph is what explains to the jury, in concrete terms, how to apply the law to

the facts of the case.” Yzaguirre v. State, 394 S.W.3d 526, 530 (Tex. Crim. App.

2013). “The jury must be instructed ‘under what circumstances they should

convict, or under what circumstances they should acquit.’” Ex parte Chandler, 719

S.W.2d 602, 606 (Tex. Crim. App. 1986). Jury charges which fail to apply the law

to the facts adduced at trial are erroneous. Gray v. State, 152 S.W.3d 125, 127–28

(Tex. Crim. App. 2004)


                                         26
       Section 8.04 of the Penal Code provides that “[v]oluntary intoxication is not

a defense to the commission of a crime.” TEX. PENAL CODE ANN. 8.04(a) (West

2011). The statute has been interpreted as barring the use of evidence of voluntary

intoxication to negate, rebut, or disprove the culpable mental state of a crime.

Davis v. State, 313 S.W.3d 317, 329-30 (Tex. Crim. App. 2010); Ramos v. State,

547 S.W.2d 33, 33–34 (Tex. Crim. App. 1977). But evidence of intoxication does

not relieve the State of its burden of proving beyond a reasonable doubt the

requisite mental state. Raby v. State, 970 S.W.2d 1, 5 (Tex. Crim. App. 1998). In

Raby, the defendant asserted that a section 8.04 (a) instruction unconstitutionally

shifted the burden on the element of criminal intent. Id. Rejecting this argument,

the Court clarified that “the State is required to specifically prove, beyond a

reasonable doubt, that a defendant intended to commit murder, regardless of any

state of intoxication.” Id. at 4-5.

       The proper application of the provision is described in detail in Sakil, where

the Court rejected the lower court’s conclusion that the instruction created a

mandatory presumption that an intoxicated person has the requisite mental state,

relieving the State of its burden. The Court explained that the State’s burden

remains in place regardless of evidence of intoxication:

              If anything, a voluntary-intoxication instruction acts to
              reaffirm the mental-state requirements, not delete them.

                                         27
             “[E]vidence of [an] appellant’s intoxication, if any, does
             not negate the elements of intent or knowledge”; and,
             therefore, when the evidence suggests that a defendant
             acted under the influence of a substance, the instruction
             operates to inform the jury that the elements of the
             offense, including the requisite mental state, are not
             affected by any evidence of intoxication. In this case, the
             instruction prevented evidence of Appellant’s possible
             intoxication from altering the jury’s understanding of the
             crime with which he was charged: “intentionally,
             knowingly, or recklessly” causing “bodily injury to
             another.”

Sakil, 287 S.W.3d at 28 (internal citations omitted). Accordingly, proper

application of section 8.04 (a) requires the jury to understand that evidence of

intoxication may not serve to negate the mental state elements, but the State must

prove the requisite mental state beyond a reasonable doubt, regardless of evidence

of intoxication. Id. Appellant’s requested instruction was derived from Sakil’s

articulation of the proper application of section 8.04 (a).

      Simply instructing the jury that voluntary intoxication “does not constitute a

defense to the commission of a crime” does not inform the jury of the interplay

between evidence of intoxication and the State’s burden on the requisite mental

state. For this reason, the State Bar of Texas Committee on Pattern Jury Charges

has included an explanatory application instruction in its criminal pattern jury

charge:



                                           28
             Voluntary intoxication is not a defense to the commission
             of a crime.

             But you are reminded that the state must prove all
             elements of the offense beyond a reasonable doubt.

See Comm. on Pattern Jury Charges, State Bar of Tex., Texas Criminal Pattern

Jury Charges: Defenses § B6.3 (2013).

      Although the Sakil opinion appears to validate an instruction tracking the

language of the statute, this portion of the opinion is dicta. The court of appeals

found that the instruction was not warranted by the evidence, and in its harm

analysis the court opined that including the instruction in the absence of supporting

evidence was harmful because served to lessen the State’s burden of proof. Sakil v.

State, 281 S.W.3d 87, 91 (Tex. App.- El Paso 2008). The Court of Criminal

Appeals reversed in light of its finding that the evidence supported the inclusion of

the instruction, and noted that it disagreed with the court of appeals’ harm analysis

regarding the effect of the instruction. 287 S.W.3d at 28. The issue presented here

– denial of a requested instruction that accurately states the law and would assist

the jury – was not before the Court.

      Moreover, the Sakil Court’s suggestion that the statutory language suffices

to convey to the jury the proper application of the abstract law is wholly

incongruous with its analysis. The Court’s explanation of the application of the law


                                         29
in relation to the State’s burden on mental state necessitated an entire paragraph,

and yet the Court suggests that a jury of laypersons will infer all of the content of

its explanation by simply being informed that voluntary intoxication is “not a

defense.”

      Typically, terms not legislatively defined are to be understood as ordinary

usage allows, and jurors may thus give them any meaning which is acceptable in

common parlance. Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992).

But when words and phrases possess a technical or established legal meaning, or

have acquired a peculiar and appropriate meaning in the law, the jury should be

instructed as such. Middleton v. State, 125 S.W.3d 450, 454 (Tex. Crim. App.

2003); Medford v. State, 13 S.W.3d 769, 772 (Tex. Crim. App. 2000) (jury could

not apply its own definition of “arrest” in escape prosecution); Ruiz v. State, 766

S.W.2d 324, 327 (Tex. App.- Houston [14th Dist.] 1989, no pet.) (trial court

reversibly erred in failing to define “constructive transfer”).

      The phrase “not a defense to the commission of a crime” in section 8.04 (a)

has acquired an established legal meaning, namely, that evidence of intoxication

should not be considered as negating the requisite mental state, but that the State

must prove that element beyond a reasonable doubt. For example, one court’s

section 8.04 (a) instruction explained its application by instructing that if the


                                           30
defendant engaged in conduct “while intoxicated from the voluntary introduction

of an intoxicating substance into his body, that intoxication, if any, cannot serve to

negate whether his conduct was engaged in intentionally, knowingly, recklessly or

with criminal negligence.” Scott v. State, 2009 WL 416513 at *8 (Tex. App. –

Austin 2009, no pet.) (not designated for publication). The additional language was

necessary to explain to the jury how to apply the “not a defense” language.

       Without an explanation of the proper application of the statutory language,

the jury was free to apply any commonly used meaning to the phrase “not a

defense to the commission of a crime.” For example, one commonly understood

definition of “defense” is “the case presented by or on behalf of the party being

accused or sued in a lawsuit.”4 The jury could have applied this broad meaning and

inferred that if a defendant was voluntarily intoxicated then he had no case in

defense of the charges. A juror could also conclude that if a defendant was

voluntarily intoxicated then all ensuing conduct is legally indefensible, regardless

of the defendant’s mental state, creating strict liability. In the absence of

explanatory language, the voluntary intoxication instruction failed “to lead and to

prevent confusion.” Hutch, 922 S.W.2d at 170. The instruction given did not

“explain to the jury, in concrete terms, how to apply the law to the facts of the

case.” Yzaguirre, 394 S.W.3d at 530. It did not instruct the jury “under what
4 http://www.oxforddictionaries.com/us/definition/american_english/defense (December 23, 2014).

                                              31
circumstances they should convict, or under what circumstances they should

acquit.” Chandler, 719 S.W.2d at 606.

      In Ruiz, supra, the court of appeals reversed because trial court failed to

define “constructive transfer” for the jury in a delivery prosecution. 766 S.W.2d

324, 327 (Tex. App.- Houston [14th Dist.] 1989, no pet.). Although the phrase was

not defined by statute, it had acquired a technical legal meaning requiring the

transferor to have direct or indirect control of the substance and knowledge of the

transferee. Id. Accordingly, the court found that the phrase did not have a common

and ordinary meaning that the jurors can be fairly presumed to know and apply,

and the trial court erred in refusing to define it in the jury charge. Id. The error

caused “some harm” because there was no evidence that the defendant had control

of the cocaine and delivered it through a third person. Id.

      The error in this case is even more pervasive because it implicated the legal

validity of the entire defense case. The language “voluntary intoxication is not a

defense to the commission of a crime” has acquired an established legal meaning,

and is subject to misapplication if given a broad meaning used in common

parlance. The statutory language does nothing to explain to the jury in concrete

terms how evidence of voluntary intoxication impacts its evaluation of the State’s

case, and implies that there was no viable defense if Appellant was voluntarily


                                          32
intoxicated at the time of the alleged offense. The trial court erred in failing to

submit Appellant’s requested instruction, or some portion thereof, explaining that

the “not a defense” language did not negate the State’s burden of proving each

element of the offense beyond a reasonable doubt.

      F.     The failure to submit an explanatory application instruction
             caused some degree of harm.

      Because Appellant preserved his complaint, the Court must reverse if the

error resulted in any harm, regardless of degree. Almanza, 686 S.W.2d at 161;

Druery, 225 S.W.3d at 504. The Almanza factors, set out above in Part A, favor a

finding of harm.

      With regard to the jury charge as a whole, the charge included an instruction

stating that the State has the burden of proving each element beyond a reasonable

doubt (CR68). But this instruction appeared several pages after the voluntary

intoxication instruction, in the boilerplate section of the charge. The voluntary

intoxication instruction immediately preceded the application paragraphs for

murder, manslaughter, and deadly conduct (CR65-67), making it more likely that

the jury was drawn to the voluntary intoxication instruction deciding whether to

convict. See Reeves v. State, 420 S.W.3d 812, 819 (Tex. Crim. App. 2013)

(physical location of erroneous instruction is a factor in evaluating harm).



                                          33
      Moreover, the boilerplate instruction on the State’s burden of proof was not

sufficient to explain the interplay between evidence of intoxication and the State’s

burden of proof. As discussed above, the jury was authorized to apply a broad

interpretation of the term “defense” which would permit it to find that any conduct

engaged in while intoxicated was legally indefensible, regardless of whether the

defendant had the requisite mental state. Because the section 8.04 (a) instruction

was the only instruction relating to defenses, and no instruction concerning

“accident” was required, the charge as a whole created a risk that the jury would

conflate Appellant’s defense of accident with the evidence of intoxication and find

that the instruction foreclosed a finding that the shooting was accidental.

Moreover, the only way the jury could give effect to the defense of accident was

through its evaluation of proof of the requisite mental state. In the absence of an

instruction correctly informing the jury that the section 8.04 (a) instruction did not

negate the State’s burden to prove mental state, the jury could not give effect to the

evidence that the shooting was accidental.

      As argued in Part A, the State’s case was not so compelling as to eliminate

any possibility of harm. There was conflicting evidence regarding whether the

shooting was accidental; conviction was not certain in the absence of the erroneous

charge. The State took advantage of the instruction by repeatedly mentioning


                                         34
Appellant’s intoxication in relation to the shooting during closing arguments

(8RR18-20).

      Additionally, the State’s voir dire implied that simply handling a gun while

intoxicated is enough to create criminal responsibility for any ensuing conduct,

unless “somebody drugged you against your will” (2RR47-50). In the context of

explaining that intoxication was not a defense, the State questioned the panel about

whether guns and alcohol “don’t mix, period” or “you just shouldn’t do it” and

elicited agreement from numerous panel members. 2RR48-50.

      In Burd v. State, 404 S.W.3d 64 (Tex.App.–Houston [1st Dist.] 2013, no

pet.), the court of appeals found that the defendant was egregiously harmed by the

omission of an instruction applying self defense to the lesser included offense of

deadly conduct. Id. at 74-75. Because the outcome hinged on self defense and there

was conflicting evidence on the issue, the failure to submit an instruction applying

self defense to each of the offenses “vitally affected” the defensive theory,

requiring reversal. Id. at 74.

      In Mendoza, discussed above in Part A, the court of appeals found reversible

error in the submission of a provocation instruction unsupported by the evidence.

349 S.W.3d 273, 282-83 (Tex. App. – Dallas 2011, pet. ref’d). In finding the error

harmful, the court of appeals noted that the term “provoke” is a legal term of art,


                                        35
requiring proof the defendant’s conduct actually evoked a response from another.

Id. at 283. The court recognized that the jury was likely to apply the common

understanding of the term, to incite anger, and this erroneous interpretation of

pivotal language in the court’s instructions would necessarily preclude a jury from

considering the statutory right of self defense. Id.

      Similar harm is present here. The jury was authorized to apply the common

understanding of the term “defense” to conclude that any conduct engaged in while

intoxicated was legally indefensible, thus interfering with Appellant’s claim of

accident, the pivotal issue in the case. The Court should find that Appellant was

harmed and reverse his conviction.

                            Issue Three: Jury Argument

      A.     Facts

      The State argued in closing as follows:

             The issue for you, ladies and gentlemen, is has the State
             proven murder? Has the State proved intentionally or
             knowingly acts? What I want you to focus on are the
             acts.

      Appellant objected:

             That’s a misstatement of the law. It’s intentionally or
             knowingly cause the result, not that he engaged in
             conduct.

      The trial court overruled the objection. 8RR16-17.

                                           36
      Later the State argued:

             When you focus on the actions of the defendant in this
             case from walking up to that bedroom, rummaging
             around in the bag, taking the gun out of the holster, his
             gun, the gun he’s familiar with, the retired police officer
             with the CHL, his gun and he pulls the trigger after
             taking several steps forward, those are all, ladies and
             gentlemen, intentional, knowing, those are purposeful
             actions.

      The defense objected again:

             Your Honor, I object. The jury charge says the conduct
             that caused the result, not that he engaged in conduct.
             That’s not part of the intentional and knowing. It’s a
             misstatement of the law that applies to this case by
             saying if you find he engaged in conduct. That’s not the
             law.

      The trial court again overruled the objection. 8RR21-22.

      B.     Standard of Review

      A court reviews de novo whether a party misstated the law during jury

argument. Thomas v. State, 336 S.W.3d 703, 713 (Tex. App.-Houston [1st Dist.]

2010, pet. ref'd). Proper jury argument falls within one of the following categories:

(1) summation of the evidence, (2) reasonable deduction from the evidence, (3) in

response to argument of opposing counsel, and (4) plea for law enforcement. Davis

v. State, 329 S.W.3d 798, 821 (Tex. Crim. App. 2010). When an argument exceeds

the permissible bounds of the approved areas, it will not constitute reversible error


                                          37
unless, in light of the record as a whole, the argument is extreme or manifestly

improper, violative of a mandatory statute, or injects new facts harmful to the

accused into the trial proceeding. Todd v. State, 598 S.W.2d 286, 296–97 (Tex.

Crim. App. 1980).

      C.     The argument was improper because it misstated the law.

      “The law provides for, and presumes, a fair trial free from improper

argument by the State.” Thompson v. State, 89 S.W.3d 843, 850 (Tex. App.-

Houston [1st Dist.] 2002, pet. ref’d) (citing Long v. State, 823 S.W.2d 259, 267

(Tex. Crim. App. 1991)). Argument that misstates the law or is contrary to the jury

charge is improper. Whiting v. State, 797 S.W.2d 45, 48 (Tex. Crim. App. 1990);

Burke v. State, 652 S.W.2d 788, 790 (Tex. Crim. App. 1983).

      There are three “conduct elements” that can be involved in an offense: (1)

the nature of the conduct, (2) the result of the conduct, and (3) the circumstances

surrounding the conduct. TEX. PENAL CODE ANN. § 6.03 (West 2011); McQueen v.

State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). In other words, some crimes

are defined in terms of result and some are defined in terms of conduct or

circumstances, and it is those “conduct elements” to which a culpable mental state

applies. McQueen at 603. When an offense is specifically delineated as to the type

of conduct, the trial court should limit the statutory definitions in the jury charge to


                                          38
the culpable mental state required. Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim.

App. 1994).

      A person commits the offense of murder if he intentionally or knowingly

causes the death of an individual or intends to cause serious bodily injury and

commits an act clearly dangerous to human life that causes the death of an

individual. TEX. PENAL CODE ANN. § 19.02(b)(1), (2) (Vernon 2003). Murder,

whether intentionally or knowingly committed, is a result-oriented offense. Cook

v. State, 884 S.W.2d 485, 490 (Tex. Crim. App. 1994). The applicable mental state

relates to the result of the conduct only, i.e., causing of the death or serious bodily

injury. Schroeder v. State, 123 S.W.3d 398, 400 (Tex. Crim. App. 2003).

      A person commits the offense of manslaughter “if he recklessly causes the

death of an individual.” TEX. PENAL CODE ANN. § 19.04. Manslaughter, like

murder, is a result-oriented offense; the defendant’s culpable mental state must

relate to the result of his or her conduct. Schroeder at 399-400.

      The jury charge properly reflected the result-oriented culpable mental states:

              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.

              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.


                                          39
             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.

CR64-66; see TEX. PENAL CODE § 6.03(a) - (c) (Vernon 1994). When the State

repeatedly argued that the issue before the jury was whether the State had proven

intentional and knowing acts, it misstated the law and contradicted the jury charge.

The misstatement arose in the context of the State arguing that evidence of the

long-standing friendship and the closeness of the families was irrelevant, while

Appellant’s intentional and knowing actions in getting the gun and pulling the

trigger were determinative of his guilt (8RR16-17). The argument erroneously

conveyed that whether Appellant intended to harm Holcomb was irrelevant as long

as his physical acts were intentional.

      It is well recognized that the State and the accused are entitled to give

reasonable explanations of the law. Eckert v. State, 672 S.W.2d 600, 603 (Tex.

App. –Austin 1984, pet. ref’d). However, no party may make a statement of what

purports to be the law, when the same is not contained in the court’s charge. Id.

Any argument that contains a statement of the law contrary to the court’s charge is

erroneous and is an improper argument. Burke v. State, 652 S.W.2d 788, 790 (Tex.

                                         40
Crim. App. 1983). Error in the argument does not lie in going beyond the charge,

but lies in stating the law contrary to the same. Mauldin v. State, 628 S.W.2d 793,

795 (Tex. Crim. App. 1982).

      D.     The improper argument affected Appellant’s substantial rights.

      Improper argument is subject to the harm standard for non-constitutional

errors found in Texas Rule of Appellate Procedure 44.2(b). Martinez v. State, 17

S.W.3d 677, 692 (Tex. Crim. App. 2000). A substantial right is affected, requiring

reversal pursuant to Rule 44.2(b), when the error had a substantial and injurious

effect or influence on the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex.

Crim. App. 1997). If the error had no influence or only a slight influence on the

verdict, it is harmless. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.

1998). If it is unclear whether the error affected the outcome, the court should treat

it as harmful. Webb v. State, 36 S.W.3d 164, 182 (Tex. App.-Houston [14th Dist.]

2000, pet. ref’d).

      Three factors govern the application of Rule 44.2(b) in a case involving

improper argument: (1) the severity of the State’s misconduct (the magnitude of

the prejudicial effect of the prosecutor’s remarks); (2) measures adopted to cure the

misconduct (the efficacy of any cautionary instruction by the trial court); and (3)




                                         41
the certainty of conviction absent the misconduct. Mosley v. State, 983 S.W.2d

249, 259 (Tex. Crim. App. 1998).

      The magnitude of the misconduct was substantial because it was repeated.

Cf. Rudd v. State, 921 S.W.2d 370, 372 (Tex. App.-Texarkana 1996, pet. ref’d)

(stating that improper comment made briefly and only once was unlikely to have

had any effect on jury); Holmes v. State, 962 S.W.2d 663, 675 (Tex. App.-Waco

1998, pet. ref’d, untimely filed) (holding harmless improper jury argument when

State did not repeat it, and offered overwhelming evidence of defendant’s guilt).

Additionally, the improper argument bore directly on the sole contested issue –

Appellant’s intent at the time of the shooting.

      There were additional arguments emphasizing the misstatement of law. The

State argued:

             And, again, we don’t have to prove to you why this
             happened. We just have to prove to you that this act
             occurred, ladies and gentlemen.

8RR20. Thereafter the State argued that if Appellant intentionally pulled the trigger

he would be guilty:

             The actions that he took that night cannot be considered
             an accident. An accident would have been if [Appellant]
             was rifling through his bag and the gun just went off.
             That’s an accident, ladies and gentlemen. An accident is
             he’s got the gun in his hand and it falls to the ground,
             goes off and shoots Mark. That’s an accident. Picking a

                                          42
             gun up out of a bag, taking it out of a holster, turning,
             saying, “I’m tired of you motherfuckers babying me
             again,” walking towards Mark, putting your finger in the
             trigger and pulling it, that is an intentional act. That is
             no accident, and you-all know that is no accident. It
             doesn’t matter what Mark says, it doesn’t matter what
             Fran says. What matters is what he did, the actions that
             he took.

8RR52 (emphasis added). Again, this argument deflected the jury’s attention from

the proper mental state – whether Appellant intended to harm Holcomb – and

shifted the focus to whether his physical actions were intentional.           This

undermined Appellant’s defense that he accidentally fired the gun when he

intended only to activate the laser.

      The State also argued:

             There are lessers for you to consider. I submit to you that
             the State has proven beyond a reasonable doubt that the
             acts that Dennis Redding did that night were all
             intentional, all knowing acts. Even if it only took 30
             seconds and even if he felt bad the minute that trigger
             was pulled, he still murdered him. He still murdered him.

8RR56 (emphasis added). The argument again misstated the culpable mental state

as applying to the nature of the conduct rather than its result.

      Moreover, the State also injected the inapplicable mental state during voir

dire. While defining manslaughter, the State explained that blowing a stop sign and

hitting a child was a “reckless act,” and then defined “reckless” in terms of the


                                           43
“circumstances surrounding his conduct.” Appellant objected that the State should

confine its discussion to the definition applicable to the case, but the trial court

overruled the objection after the State argued that it could present the full

definition in voir dire. 2RR27-30. Because the issue was brought to the State’s

attention early in the proceedings, there can be no excusing the State’s repeated

misstatements in closing argument as inadvertent slip-ups. “Appellate courts must

not hesitate to reverse a judgment when it appears a prosecutor has departed from

one of these [four] areas in his argument and has engaged in conduct calculated to

deny an accused a fair and impartial trial.” Dickson v. State, 642 S.W.2d 185, 187

(Tex. App.–Houston [14th Dist.] 1982, pet. ref'd) (citing Johnson v. State, 604

S.W.2d 128 (Tex. Crim. App. 1980)).

      Although Appellant was acquitted of murder, the improper argument could

have contributed to his conviction for manslaughter. Manslaughter, like murder, is

a result-oriented offense. It requires proof of conscious risk creation -- that the

defendant was aware of but consciously disregarded a substantial and unjustifiable

risk that death will result. Lewis v. State, 529 S.W.2d 550, 553 (Tex. Crim. App.

1975). By arguing that the jury should ignore evidence of Appellant’s long-

standing friendship with Holcomb and focus solely on his physical actions, the

State diverted the jury’s attention from its burden of proving the scienter


                                        44
requirement with regard to the result of his conduct, whether reckless or

intentional.

      There were no curative instructions because the trial court denied all

objections. A trial court puts its stamp of approval on the prosecutor’s

misstatement of the law when it overrules the defense’s objection. Burke, 652

S.W.2d at 790; Lee v. State, 971 S.W.2d 130, 131 (Tex. App.- Houston [14th Dist.]

1998, pet. ref d).

      Finally, conviction was not certain absent the misconduct. There was no

evidence of any animosity between Appellant and Holcomb sufficient to incite

violence, while there was ample evidence supporting Appellant’s claim of

accident. Holcomb himself consistently and repeatedly characterized the shooting

as an accident (3RR55, 136, 169; 5RR52, 55), as did Appellant (4RR54, 234;

6RR80, 89-90; SX35). The only witness who disagreed with this characterization

was Appellant’s son-in-law Schieffer, who testified that the shooting did not

appear to be an accident, but his description of the shooting was incompatible with

physical evidence of the bullet’s trajectory (4RR30-32; 5RR43, 72). The evidence

against Appellant was not overwhelming. Accordingly, each of the three Mosely

factors supports reversal.




                                        45
      In Peak v. State, 57 S.W.3d 14 (Tex. App. - Houston [14th Dist.] 2001, no

pet.), the State repeatedly misstated the law in regard to the medical care defense

at closing argument in prosecution for sexual assault of a child. The State

incorrectly argued that the defendant could be convicted of sexual assault without

proof that he acted “unlawfully,” thus nullifying the statutory medical care defense.

Id. at 18. Applying three Mosley factors, the court noted that the prosecutor

engaged in serious misconduct by repeatedly misstating the law. Id. at 20. While

the trial court sustained one objection, it overruled another and there were no

curative instructions. Id. The State emphasized the improper by labeling the

statutory defense as “absurd” and “ridiculous.” Id. at 21. There was no certainty of

conviction because evidence was disputed regarding the medical care defense. Id.

In these circumstances, the court found that reversal was warranted. Id.

      Likewise, the State’s repeated misstatement of the law in the instant case

bore directly on the defensive issue, Appellant’s lack of intent; there were no

curative instructions; and the evidence of guilt was not overwhelming. Because the

error affected Appellant’s substantial rights, reversal is required.

                                      PRAYER

      Appellant respectfully requests that the Court reverse his conviction and

remand the case for a new trial.


                                           46
                                             Respectfully submitted,

                                             SCHNEIDER & MCKINNEY, P.C.

                                             /s/ STANLEY G. SCHNEIDER
                                             STANLEY G. SCHNEIDER
                                             Texas Bar No. 17790500
                                             440 Louisiana, Suite 800
                                             Houston, Texas 77002
                                             (713) 951-9994 (Office)
                                             (713) 224-6008 (Fax)
                                             stans3112@aol.com (Email)

                                             ATTORNEY FOR APPELLANT




                         CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the attached and foregoing

document has been served on the State by mailing and/or hand delivering a copy

to the Galveston County District Attorney’s Office at 600 59th Street, Suite 1001,

Galveston, Texas 77551, on this 9th day of January, 2015.


                                             /s/ STANLEY G. SCHNEIDER
                                             STANLEY G. SCHNEIDER




                                        47
                      CERTIFICATE OF COMPLIANCE

      I certify that this document was prepared with Word Perfect X3, and that,

according to that program’s word-count function, the sections covered by TEX. R.

APP. P. 9.4(i)(1) contain 10, 469 words.


                                                /s/ STANLEY G. SCHNEIDER
                                                STANLEY G. SCHNEIDER




                                           48
