                                                                                    PD-1455-15
                                                                  COURT OF CRIMINAL APPEALS
                                                                                   AUSTIN, TEXAS
                                                                  Transmitted 5/27/2016 1:54:16 PM
MAY 31, 2016                                                        Accepted 5/31/2016 8:29:26 AM
                                                                                    ABEL ACOSTA
                                 NO. PD-1455-15                                             CLERK

                             ********************

                                     IN THE

                      COURT OF CRIMINAL APPEALS

                                AUSTIN, TEXAS

                             ********************

                          KELVIN LEE ROY, Petitioner

                                        V.

                        THE STATE OF TEXAS, Appellee

                        Petition in Cause No. B-140,221-R
               From the 163rd District Court of Orange County, Texas
                                        and
                           Cause No. 09-14-00367-CR
                     Court of Appeals, Ninth District of Texas
                              ********************

                                   State’s Brief

                             ********************
                                                              John D. Kimbrough
                                                         Orange County Attorney
                                                       Orange County Courthouse
                                                             Orange, Texas 77630
                                                          State Bar No. 11425300

                                                                  Krispen Walker
                                                       Assistant County Attorney
                                                       Orange County Courthouse
                                                             Orange, Texas 77630
                                                          State Bar No. 00791870
ORAL ARGUMENT REQUESTED
                  IDENTITY OF PARTIES AND COUNSEL

Krispen Walker, Attorney for the State of Texas
Orange County Attorney’s Office
801 Division
Orange, Texas 77630

Christine R. Brown-Zeto, Attorney for the Appellant
1107 Green Avenue
Orange, Texas 77630

KELVIN LEE ROY, Appellant
Coffield Unit
2661 FM 2054
Tennessee Colony, Texas 75884

Malachi Daws, Attorney Representing Appellant at Trial
P. O. Box 1806
Vidor, Texas 77670

Dustin Galmor
Attorney for Petitioner on Petition for Discretionary Review
485 Milam
Beaumont, Texas 77701

Trial Judge: Hon. Dennis R. Powell




                                         i
                                           TABLE OF CONTENTS

Identity of Parties and Counsel...................................................................................i

Table of Contents......................................................................................................ii

List of Authorities....................................................................................................iii

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

Statement of Facts.................................................................................................... 2

Summary of the State’s Argument...........................................................................6

State’s Reply to Appellant’s Issue Presented............................................................7

Argument and Authorities………………………………………………………….8

Prayer.......................................................................................................................18

Certificate of Compliance – Word Count………………………………………....19

Certificate of Service..............................................................................................19




                                                              ii
                         LIST OF AUTHORITIES

CASES

Bignall v. State, 887 S.W.2d 21, 23 Tex.Crim.App. 1994)………………………...8

Hall v. State, 225 S.W.3d 524 (Tex.Crim.App. 2007, reh’g denied)……………....8

Ross v. State, 861 S.W.2d 870 (Tex.Crim.App. 1993, reh’g granted)………13, 14

Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App. 1993)…………..…16

Roy v. State, No. 09-14-00367-CR (Tex.App. – Beaumont August 26, 2015, pet.
granted)…………………………………………………………………………….6

Schroeder v. State, 123 S.W.3d 398 (Tex.Crim.App. 2003, en banc)……15, 16, 17

Williams v. State, 235 S.W.3d 742, 751 (Tex.Crim.App. 2007)……………10, 11



STATUTES

TEX.PEN.CODE Sec. 6.03(c)….…………………….………………………...10, 11

TEX.PEN.CODE Sec. 8.04…………………………………………………..…….12

TEX.PEN.CODE Sec. 12.32…………………………………………………….…17

TEX.PEN.CODE Sec. 12.33……………………………………………………….17

TEX.PEN.CODE Sec. 19.02(b)(1)……………………………………………..9, 17

TEX.PEN.CODE Sec. 19.02(b)(2)……………………………………...……..1, 6, 9

TEX.PEN.CODE Sec. 19.02(b)(3)………………………………………………….9

TEX.PEN.CODE Sec. 19.04……………………………………………….…10, 17

                                     iii
                                  NO. PD-1455-15

                              ********************

                                      IN THE

                      COURT OF CRIMINAL APPEALS

                                 AUSTIN, TEXAS

                              ********************

TO THE HONORABLE JUDGES OF SAID COURT:

      On August 28, 2014, the Appellant, KELVIN LEE ROY, was sentenced to a

term of confinement for seventy-five (75) years in the Texas Department of

Criminal Justice – Institutional Division following a jury trial and sentencing in the

163rd District Court, Orange County, Texas, Dennis Powell, Presiding Judge. It is

from this sentence that Appellant appeals.

                          STATEMENT OF THE CASE

      The Appellant, KELVIN LEE ROY, was charged by indictment with the

murder of Alexandria Bertrand on April 23, 2014. (C.R., 8) The indictment

tracked the language of section 19.02(b)(2) TEX.PEN.CODE. Petitioner requested

that manslaughter be submitted to the jury as a lesser-included offense (R.R. 6, p.

113) The trial court denied the request, and the jury convicted Petitioner of

murder. He was sentenced to serve 75 years imprisonment. (R.R. 7, p. 71) The


                                          1
Court then pronounced sentence.                         (R.R. 7, pp. 72-3)   On appeal, Petitioner

challenged the trial court’s denial of his request for a jury instruction on the

offense of manslaughter. The Court of Appeals held that because Petitioner’s

testimony establishes that he was unaware of the result of his conduct, the trial

court properly denied Petitioner’s request for an instruction on the lesser-included

offense of manslaughter. (Court’s opinion page 10).

                                        STATEMENT OF FACTS

         The State agrees with the court of appeals statement of facts, quoted below.

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

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

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

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

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

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

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

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

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

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

revving as it sped past them. Bryan testified that “it was like whoever the driver of
1 Roy testified that a “dip cigarette” is a cigarette dipped in P.C.P.

                                                             2
the car was hit the gas, because you could see the rear end of the car actually sit

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

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

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

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

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

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

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

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

collided with Bertrand’s vehicle. Bertrand testified that Alexandria was ejected

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

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

bomb explosion.

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

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

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

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

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

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


                                         3
“under the influence.” Officer Chase Alexander testified that Brown told him she

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

her.

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

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

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

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

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

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

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

vehicle. Roy denied ownership of the drugs.

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

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

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

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

Alexandria died of blunt force trauma.

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

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

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


                                         4
the brakes. Alexander testified that Roy’s erratic driving was consistent with a

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


                                         5
      Roy admitted to having a history of drug use and drug-related criminal

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

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

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

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

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

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

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

responsibility for Alexandria’s death.

Roy v. State, No. 09-14-00367-CR (Tex.App. – Beaumont August 26, 2015, pet.

granted).

                 SUMMARY OF THE STATE’S ARGUMENT

Summary of the State’s reply to Petitioner’s sole issue:

      Murder, charged under section 19.02(b)(2) of the Texas Penal Code, is

established by proof that the defendant intended to cause serious bodily injury and

committed an act clearly dangerous to human life that caused an individual’s death,

while manslaughter is established by proof that the defendant recklessly caused an

individual’s death. Although, manslaughter is a lesser-included offense of murder,

the trial court properly refused to include in the jury charge an instruction on the


                                         6
lesser included offense of manslaughter. No evidence was presented during trial to

indicate that Petitioner acted recklessly with the respect to the charged conduct of

intentionally driving his vehicle into the vehicle occupied by Alexandria Bertrand

and causing her death. Petitioner only admits that his conduct of using drugs and

driving was reckless and denies the charged conduct. In addition, evidence that a

murder defendant was unable to remember causing the death of the victim does not

entitle that defendant to a charge on the lesser-included offense of manslaughter.

Finally, there is no evidence in the record that if Petitioner was guilty, he was

guilty only of manslaughter.

      Petitioner was properly convicted of murder as charged in the indictment

based on the testimony and evidence presented at trial. The court of appeals did

not err in holding that the trial court properly denied Petitioner’s request for an

instruction on the lesser-included offense of manslaughter.

STATE’S REPLY TO PETITIONER’S ISSUE PRESENTED

State’s Reply to Petitioner’s Issue: Because Petitioner’s testimony established

that he was unaware of the result of his conduct, and because there is no evidence

to show that if Petitioner was guilty, he was guilty only of manslaughter, the court

of appeals did not err holding that Petitioner was not entitled to a charge on the

lesser-included offense of manslaughter.


                                           7
                         ARGUMENT AND AUTHORITIES

      Determining whether a defendant is entitled to the submission of a lesser-

included offense requires a two part analysis.       The first part of the analysis,

determining whether an offense is a lesser included offense of the alleged offense,

is a question of law and does not depend on the evidence produced at trial. The

second part of the analysis requires a determination of whether there is evidence

that supports giving the instruction to the jury. “‘A defendant is entitled to an

instruction on a lesser-included offense where the proof for the offense charged

includes the proof necessary to establish the lesser-included offense and there is

some evidence in the record that would permit a jury rationally to find that if the

defendant is guilty, he is guilty only of the lesser-included offense.’” Hall v. State,

225 S.W.3d 524 (Tex.Crim.App. 2007, reh’g denied) (citing Bignall v. State, 887

S.W.2d 21, 23 Tex.Crim.App. 1994). Although anything more than a scintilla of

evidence may be sufficient to entitle a defendant to a lesser charge, the evidence

must establish the lesser-included offense as a “‘valid, rational alternative to the

charged offense.’” Id.

      In the instant case, Petitioner requested a jury instruction on the lesser-

included offense of manslaughter. (R.R. 6, p. 113)




                                          8
      In order to receive a jury instruction on the lesser-included offense of

manslaughter, Petitioner must show, as a first step, that manslaughter is, in fact, a

lesser-included offense of murder as charged. The first step of the test is satisfied.

Manslaughter is a lesser-included offense of murder as charged. Because the first

step has been satisfied, the Court must look to the evidence adduced at trial to

determine whether the second step of the analysis provides for the inclusion of a

lesser-included offense instruction.

      A person can commit the offense of murder in three different ways. A

person commits the offense of murder if he: (1) intentionally or knowingly causes

the death of an individual; (2) intends to cause serious bodily injury and commits

an act clearly dangerous to human life; or (3) commits or attempts to commit a

felony, other than manslaughter, and in the course of and in furtherance of the

commission or attempt, or in immediate flight from the commission or attempt, he

commits or attempts to commit an act clearly dangerous to human life that causes

the death of an individual. (TEX.PEN.CODE Section 19.02(b)(1),(2), and (3)).

      In the case at bar, Petitioner was charged under TEX.PEN.CODE Section

19.02(b)(2), specifically that Petitioner “did then and there intend to cause serious

bodily injury to an individual, Taralynn Brown, and did then and there

intentionally commit an act which was clearly dangerous to human life, to wit:


                                          9
driving a vehicle in which the said Taralynn Brown was a passenger into another

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

Alexandria Bertrand.” (C.R., p. 8).

        A person commits the offense of manslaughter, if the person recklessly

causes the death of an individual. (TEX.PEN.CODE Section 19.04). A person acts

recklessly, or is reckless, with respect to circumstances surrounding his conduct or

the result of his conduct when he is aware of but consciously disregards a

substantial and unjustifiable risk that the circumstances exist or 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.

(TEX.PEN.CODE Section 6.03(c)).

        “[A]t the heart of reckless conduct is conscious disregard of the risk created

by the actor‘s conduct.      As has often been noted, ‘[m]ere lack of foresight,

stupidity, irresponsibility, thoughtlessness, ordinary carelessness, however serious

the consequences may happen to be, ‘do not suffice to constitute either culpable

negligence or criminal recklessness.        Recklessness requires the defendant to

actually foresee the risk involved and to consciously decide to ignore it.” Williams

v. State, 235 S.W.3d 742, 751 (Tex.Crim.App. 2007).


                                           10
      “In sum, in addressing the culpable mental state of recklessness under

Section 6.03(c), the factfinder (and a reviewing court) must examine the

defendant’s conduct to determine whether

      (1) the alleged act or omission, viewed objectively at the time of its
commission, created a ‘substantial and unjustifiable’ risk of the type of harm that
occurred;

       (2) that risk was of such a magnitude that disregard of it constituted a gross
deviation from the standard of care that a reasonable person would have exercised
in the same situation (i.e., it involved an ‘extreme degree of risk, considering the
probability and magnitude of the potential harm to others’),

      (3) the defendant was consciously aware of that ‘substantial and
unjustifiable risk’ at the time of the conduct; and

      (4) the defendant consciously disregarded that risk.

Williams at 755.


      In light of this four part test, it is clear, that viewed objectively at the time of

the commission of the offense, Petitioner’s actions created a substantial and

unjustifiable risk of the type of harm that occurred and that the risk was of such a

magnitude that disregard of it constituted a gross deviation from the standard of

care that a reasonable person would have exercised in the same situation.

Petitioner, however, according to his own testimony, fails to meet the requirement

that he was consciously aware of that substantial and unjustifiable risk at the time

of the conduct and that he consciously disregarded that risk.

                                           11
      Petitioner argues that he was intoxicated and the crash occurred as a result of

his intoxication.   Voluntary intoxication does not constitute a defense to the

commission of crime. (TEX.PEN.CODE Section 8.04). The jury was properly

instructed as to this law. (C.R., p. 122)

      In this case, because Petitioner testified that he believed that he lost

consciousness, that he had no recollection of speeding down Main Street, of the

crash, of being taken by ambulance to the hospital, or of being treated at the

hospital, the evidence fails to establish that Petitioner acted with the required

culpable mental state of recklessness to include the lesser-included offense of

manslaughter as a valid, rational alternative to murder. (R.R. 6, p. 57)

Accordingly, the trial court properly denied Petitioner’s request for an instruction

on the lesser-included offense of manslaughter and the court of appeals did not err

in affirming Petitioner’s conviction for murder.

      The evidence is clear that Petitioner was not entitled to an instruction on the

lesser-included offense of manslaughter in this case because no evidence exists in

the record that would permit a jury rationally to find that if Petitioner was guilty,

he was guilty only of the lesser-included offense of manslaughter. Petitioner

admitted that he was, in fact, driving the vehicle that ultimately collided into the

vehicle occupied by Alexandria Bertrand and caused her death. He admitted that


                                            12
he had been using P.C.P. while driving. Petitioner admitted that he knew the risks

of using drugs and driving but still decided to do the drugs and drive. Petitioner

denied, however, driving his vehicle into the minivan occupied by Alexandria

Bertrand, alleging that he was “passed out at the time.” (R.R. 6, p. 71)

      Petitioner, however, was not charged with the offense of intoxication

manslaughter, he was charged with intentionally driving his vehicle into another

vehicle and thereby killing Alexandria Bertrand. He offered no testimony that he

was aware of the risk of intentionally driving his vehicle into another vehicle and

that he then consciously disregarded that risk. Instead, he denied the offense with

which he was charged, intentionally driving his vehicle into another vehicle.

Although Petitioner stated, upon questioning by his counsel, that he considered his

actions of using drugs and driving that night to be reckless, which any reasonable

person would agree, he never testified with respect to any belief that he his conduct

of driving into another vehicle was reckless. Petitioner’s testimony, therefore,

does not rise to the level required to permit a jury rationally to find that Petitioner

was guilty only of the lesser-included offense of manslaughter.

      Upon rehearing, this Court in Ross v. State, 861 S.W.2d 870 (Tex.Crim.App.

1993, reh’g granted), which had originally held that the Appellant, who was

charged with and found guilty of capital murder, was entitled to a lesser-included


                                          13
instruction of manslaughter, determined that it was possible that the “appellant’s

actions constituted an act clearly dangerous to human life, which resulted in the

victim’s death indicating appellant may have only been guilty of felony-murder, as

distinguished from involuntary manslaughter.” Ross at 877.

       In Ross, the appellant admitted to committing a robbery, during which he

held a gun to the victim. In his confession, which was introduced by the State, the

appellant stated “‘[w]hen I shoved the man the gun went off and struck the man in

the head”’ which he argued made the evidence insufficient to find him guilty of

intentionally causing the death of the victim. Id. at 872, 873. This Court found,

however, that “a rational trier of fact could have found beyond a reasonable doubt

that appellant intentionally caused the death of the deceased. While the isolated

statement by appellant in his confession may lend support to his argument that the

shooting was accidental, that was not the only evidence the jury reviewed.” Id. at

873.

       In the case at bar, in addition to Petitioner’s isolated statement that he

considered actions not charged in the indictment to be reckless, the jury reviewed

ample evidence of the charged conduct. The jury heard testimony of Petitioner’s

intent to cause serious bodily injury and his intent to commit an act clearly

dangerous to human life including Brown’s testimony that Petitioner was driving


                                        14
in two lanes and almost struck the side of the freeway and other vehicles and that

he told Brown, “I’m going to kill both of us.” The jury also considered the

testimony of Christopher Morgan, Joshua Bryan, and Brittany Monroe who

testified that they saw Petitioner drive past them at a high rate of speed; that

Petitioner overcorrected and nearly struck the curb; that they heard the engine

revving as it sped past them; that “it was like whoever the driver of the car was hit

the gas, because you could see the rear end of the car actually sit down[.]”; that

that they never saw the vehicle’s brake lights; and that Morgan believed Petitioner

had “[n]o intent to stop.” The jury also considered the testimony of Victoria

Andis, who testified that Brown told her that Petitioner was driving crazy, was

under the influence, and was trying to kill Brown and himself. Therefore, no

evidence exists which would enable a jury to rationally convict Petitioner of the

lesser-included offense of manslaughter only.

      Petitioner further argues that the court of appeals in this case has decided an

important question of State law which should be settled by this Court of Criminal

Appeals. This Court, however, has already addressed this very issue.

      In Schroeder v. State, 123 S.W.3d 398 (Tex.Crim.App. 2003, en banc), the

defendant was charged with the murder of his wife by shooting her with a firearm.

The defendant testified that during an argument, he and his wife began to struggle


                                         15
over a gun, that they hit the floor, and then he “blacked out” and didn’t remember

shooting his wife. Schroeder at 399. Although the trial court charged the jury on

the defensive issues of self-defense and accident, it denied the defendant’s request

for an instruction on the lesser-included offense of manslaughter. Id. at 400. On

appeal, the court of appeals relied on the two-prong test set forth in Rousseau v.

State, 855 S.W.2d 666, 672-73 (Tex.Crim.App. 1993) which provides that a charge

on a lesser-included offense is required where (1) the lesser-included offense is

included within the proof necessary to establish the charged offense, and (2) there

is some evidence in the record that would permit a jury to rationally find that, if the

defendant is guilty, he is guilty only of the lesser included offense. In Schroeder,

both the State and the Appellant agreed that the first prong had been met, so the

court of appeals was charged only with determining whether the second prong had

been met. The Court of Criminal Appeals held that the court of appeals, although

it correctly identified the issue – whether the record shows some evidence that

would have allowed a jury to rationally find that the appellant, if guilty of any

offense, was guilty only of manslaughter – it was incorrect to hold that there was

evidence that the appellant had acted recklessly with respect to causing the

victim’s death and, therefore, was entitled to a manslaughter charge. Schroeder at

400.


                                          16
      In Schroeder, as in the case at bar, the appellant testified that “although he

remembered the events leading up to the shooting, he suddenly ‘blacked out’ and

had no recollection of actually shooting the victim.        Therefore, by his own

admission, he was not aware of having caused the victim’s death at the time of the

shooting.” Schroeder at 401. Almost identical to the facts in Schroeder, Petitioner

testified that he believed that he lost consciousness, that he had no recollection of

speeding down Main Street, of the crash, of being taken by ambulance to the

hospital, or of being treated at the hospital. (R.R. 6, p. 57) Appellant denied

driving his vehicle into the minivan occupied by Alexandria Bertrand, alleging that

he “was passed out at the time.” (R.R. 6, p. 71) Therefore, there is no evidence

that would permit a jury to rationally find that at the time of the crash, Petitioner

was aware of but consciously disregarded a substantial and unjustifiable risk that

the victim would die as a result of his conduct.         A person cannot possibly

“consciously disregard” a risk of which he is unaware.

      Petitioner further argues that he was substantially harmed by the trial court’s

decision not to instruct the jury on the lesser-included offense of manslaughter.

The range of punishment for murder is confinement for 5 to 99 years or life.

TEX.PEN.CODE §§ 19.02, 12.32. The range of punishment for manslaughter is

confinement for 2 to 20 years. TEX.PEN.CODE §§ 19.04, 12.33.


                                         17
      The sentenced assessed by the jury, 75 years confinement for murder,

evidences the jury’s strong belief that Petitioner acted with intent to cause serious

bodily injury to Brown and intentionally committed an act clearly dangerous to

human life (murder) and did not act recklessly (manslaughter). The record is

absolutely void of evidence that Petitioner was substantially harmed by the trial

court’s decision not to include a lesser-included charge of manslaughter, even if he

was entitled to it, because the jury would almost certainly have rejected that option

as evidenced by their punishment verdict.

                                     PRAYER

       The State prays that this Court overrule Petitioner’s issue presented for

review and affirm the judgment of the Ninth Court of Appeals.

                                              Respectfully submitted,

                                              /s/Krispen Walker__
                                              Krispen Walker
                                              Assistant County Attorney
                                              Orange County Courthouse
                                              Orange, Texas 77630
                                              (409) 883-6764
                                              State Bar No. 00791870




                                         18
                    Certificate of Compliance Word Count

I hereby certify pursuant to T.R.A.P 9.4 (i)(3) that the total word count for this
brief is 4418 words as determined by Microsoft Word.

                                            /s/Krispen Walker
                                            KRISPEN WALKER
                                            ASSISTANTCOUNTY ATTORNEY



                        CERTIFICATE OF SERVICE

      This is to hereby certify that a true and correct copy of the above and
foregoing instrument has been forwarded to the State Prosecuting Attorney, P. O.
Box 12405, Austin, Texas, and to Appellant’s counsel of record, Dustin Galmor,
485 Milam, Beaumont, Texas 77701, on this the 27th day of May, 2016.

                                            /s/Krispen Walker___
                                            KRISPEN WALKER




                                       19
