             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________
           No. 02-18-00448-CR
      ___________________________

  NICHOLAS RYAN HESTER, Appellant

                     V.

          THE STATE OF TEXAS




   On Appeal from the 396th District Court
          Tarrant County, Texas
        Trial Court No. 1549191R


Before Sudderth, C.J.; Womack and Wallach, JJ.
  Memorandum Opinion by Justice Wallach
                          MEMORANDUM OPINION

      The State charged Appellant Nicholas Ryan Hester by indictment with

intentionally killing Chaney Hawthorne in the course of committing or attempting to

commit robbery and with altering, destroying, or concealing a human corpse with

intent to impair its verity or availability as evidence. See Tex. Penal Code Ann.

§§ 19.03(a)(2), 37.09(c). The indictment included a habitual offender notice. The jury

found Appellant guilty as charged in the indictment, and the trial court sentenced him

to life imprisonment for capital murder and to sixty years’ confinement for tampering

with a corpse. Appellant timely appealed.

      In three issues, Appellant challenges the sufficiency of the evidence supporting

his convictions (issues one and three) and contends that the trial court provided

“erroneous and incomplete” jury instructions by not sua sponte instructing the jury in

the capital murder charge on the lesser-included offense of felony murder (issue two).

Because the evidence is sufficient to support Appellant’s two convictions and the trial

court had no duty to sua sponte instruct the jury on the lesser-included offense of

felony murder, we affirm the trial court’s judgments.

                             BACKGROUND FACTS

      Before his death, twenty-one-year-old Hawthorne lived with his grandparents

in Benbrook but often stayed with friends. Hawthorne had struggled with drug

addiction and, after a near-fatal overdose in April 2016, his grandparents sent him for



                                            2
inpatient treatment in Florida. In the summer of 2016, he returned to Tarrant County

and was in the outpatient phase of treatment. He overdosed again in mid-July.

       Hawthorne’s grandparents had bought him a gray Ford pickup truck in March

or April of 2016. Hawthorne treated his truck “[l]ike it was his baby” and “was very

picky with it.”

       On August 24, 2016, Hawthorne telephoned his grandmother and told her that

the truck’s service light was on. His grandmother suggested that Hawthorne call a

mechanic friend of the family. Hawthorne and the mechanic arranged to meet at the

grandparents’ house at 8:00 a.m. the following day.

       Around 10:56 p.m. on August 24, Hawthorne and his friend Colton Carnie

spoke on the phone, and Hawthorne told Carnie that he was on his way to Carnie’s

house. They texted back and forth from 11:12 to 11:18 p.m. When Hawthorne failed

to arrive, Carnie called him several times, worried.        The next day, he tried

unsuccessfully to find Hawthorne.

       Hawthorne did not arrive for the 8:00 a.m. meeting at his grandparents’ house.

His grandmother tried unsuccessfully to reach him, and, after speaking to Carnie, she

called the police and filed a missing person’s report.

       Hawthorne’s grandmother paid for his cell phone, and she had online access to

his call logs. She printed out the records and gave those to the police. She also gave

the police information about his truck.



                                            3
      One of the last phone numbers on Hawthorne’s call log was registered to

Davien Powell. A call was made to Powell’s phone from Hawthorne’s phone at

11:48 p.m. on August 24. Powell lived in a house on Trail Lake Drive in Fort Worth,

and Appellant lived in Powell’s garage. Appellant did not have a vehicle.

      Powell’s phone was not at his home at 11:48 p.m., but Hawthorne’s phone was

pinging in the location of Powell’s home. After the phone call to Powell’s phone,

phone records show that his phone traveled back to the vicinity of his home.

“[T]here was no outgoing activity on” Hawthorne’s phone after an inbound call from

Powell’s phone at 2:01 a.m. on August 25, 2016.

      Late in August 2016, Powell’s then-girlfriend, Edith Tribble, awoke early in the

morning and found Powell in the garage scrubbing the floor with bleach. She had

never seen Powell clean the garage at all, much less like that. Later that same day

when she came home from work, she noticed that couches that had been in the

garage were no longer there and that their daughter’s mattress was missing from the

house. She never saw Appellant again until the trial.

      On August 26, 2016, Appellant visited friends in Maud, Texas. Appellant

drove there in a gray Ford pickup truck. He told Elizabeth Goodrich and her

significant other, with whom he stayed, that he needed to “get away for a while.”

Appellant initially told his friends that he had bought the truck, but after Goodrich

told him “that he better not be lying about where the truck came from,” “nobody

better be coming to [her] house,” and “[i]t better not be stolen,” he told her that the

                                           4
truck “belonged to a friend of his and that [the friend] was going to sell it to him.”

Goodrich later told Appellant again that he “better not give [her] no trouble with that

truck,” and he told her that “he ain’t going to have no trouble about the truck.”

Appellant also told her (regarding the truck’s owner), “[T]he motherfucker is dead[;] I

left his ass in the woods.” Goodrich explained at trial, “The entire conversation was,

[in Appellant’s exact words,] he’s dead, I left him in the woods. And I said, how the

fuck you know he’s dead? And he said, because I killed the motherfucker, you ain’t

got nothing to worry about.” On the last day she saw Appellant, he told her both that

he left the truck’s owner on the side of the road and that the owner was really still

alive in Fort Worth and that Appellant had been “just playing” with her.

      Appellant first told Goodrich’s son Ricky Ross that he bought the truck by

working in the Fort Worth area, but later Appellant, “all paranoid and . . . looking

everywhere like this and stuff,” told Ross, “[S]ee that truck right there? . . . I killed

[the] man that owned that truck.” Ross also testified that Appellant told him that he

“beat [the truck’s owner] and then left him in the woods for the hogs or whatever,

something like that.” Ross explained that Appellant told him he killed the truck’s

owner because he needed a way to get back to Maud from Fort Worth; “he just

needed a ride.”

      Appellant gave a ride to Goodrich’s friend Jacy Miller, and Miller saw in the

window behind her a fast-food visor with the name “Chaney” on it. Appellant told

her that he got the truck from his father.           She later overheard Appellant’s

                                           5
conversation with another friend in which Appellant told the friend that “he wouldn’t

have to worry about that truck being reported stolen[;] the driver had been taken care

of.”

       On August 27, Appellant asked Goodrich if he could clean out the truck in the

burn pile in her backyard. Appellant cleaned out the truck and put things in the burn

pile. Appellant tried to sell Goodrich’s significant other the truck. Appellant later

tried to sell Miller’s dealer the brush guard attachment from the truck, and the dealer

told him to put it behind the house.

       In the early hours of August 31, 2016, Deputy Brent Caudle of the Bowie

County Sheriff’s Department saw a gray Ford pickup truck on the side of US

Highway 67. The truck appeared to be abandoned or disabled. Caudle turned around

to investigate and asked dispatch to run a registration check on the license plate.

Dispatch reported that the truck was associated with Hawthorne, who had been

reported as a missing person. Around the same time, Caudle received a call from

dispatch about a suspicious person three miles away. Caudle left to investigate, and

when he returned a few minutes later, the truck was gone.

       Caudle spotted the truck again at a nearby gas station. He stopped the driver—

Appellant—and “explain[ed] to him that he [was] being detained because the vehicle

that he [was] operating c[a]me back to a missing person.” Appellant told Caudle that

he had dropped Hawthorne off at a nearby low-water bridge to fish. Appellant also

told Caudle that Hawthorne was on acid. Caudle ran a check on Appellant and, upon

                                          6
learning that he had active warrants, arrested him. Caudle conducted a search incident

to arrest. Appellant was wearing baggy sweatpants, and hanging from the drawstring

on the inside of his pants was a bag containing Hawthorne’s driver’s license and

insurance card. Caudle drove to the area by the low-water bridge and did not see

Hawthorne.

         Captain Robbie McCarver of the Bowie County Sheriff’s Department

interviewed Appellant after he was jailed. Appellant told McCarver that he and

Hawthorne met in Fort Worth and went to Bowie County together to visit Candy

Hagler and that Hawthorne did not want to be seen by law enforcement. Hagler told

McCarver that she did not know Hawthorne or recognize the photo of him that the

captain showed her. While Appellant was in jail in Bowie County, he spoke to his

mother from jail. He told her, “I ended up with horns. I thought I was supposed to

be an angel.” He also said, “I am going to need another vehicle now that my truck’s

gone.”

         On October 13, 2016, about seven weeks after Hawthorne disappeared, Jesse

Castillo found human remains in a wooded area north of his Fort Worth home. His

son and a friend had been playing in the area and told him they had seen what they

thought might have been Halloween decorations. Castillo called the police after

seeing the boys’ discovery. He testified that “the body was in one location and the

head was in another, and then . . . the bones were kind of spread between the head

and the body itself.” Using dental records, police matched the remains to Hawthorne.

                                          7
         Fort Worth Police Department (FWPD) homicide detective Kyle Sullivan

testified that tree limbs, mattresses, and a crib were found piled on top of the remains.

FWPD crime scene officer Danielle McConahay testified that the remains were

scattered over a large field. She described State’s Exhibit 89, a photograph, as “a pile

of branches and other miscellaneous materials that were on top of a bunch of the

skeletal remains,” and it appeared to her that someone had deliberately tried to cover

up the body. She believed that skeletal remains found nearby had been dragged away

from the pile by animals. Similarly, forensic anthropologist Dana Austin testified that

a blanket was found under the remains, and a jumper that a baby goes in, a mattress,

and branches were piled on top of it. She stated that “this was an attempt to conceal

a body, place a body out there, pile some things on top of it, pile the wood on top of

it, so that it would be . . . obscured.” Because of the state of the remains and signs of

animal scavenging, the medical examiner could not determine the cause or manner of

death.

         Tribble identified some items found near the remains as Powell’s shirts and a

work vest and Lake Como blanket that had been in the garage. The remains were

found about four minutes from Powell’s house by car.

         FWPD Detective Sullivan interviewed Appellant, who admitted to having sold

Hawthorne drugs, having stolen his truck, and having used his cell phone to call

Powell—all on the night Hawthorne went missing. Appellant claimed that he and

Hawthorne spent a few days doing drugs together and said that he had last seen

                                           8
Hawthorne at the gas station where they had originally met and where the drug buy

occurred. Appellant said that he used Hawthorne’s phone to call Powell before he

dropped Hawthorne off at the gas station. Appellant said in the interview that he had

lied to his friends “about the whole truck situation” because he did not want to

incriminate himself on another charge that he claimed had “nothing to do with any

kind of murder, assault, or any kind of violence.” Appellant explained to the officers

that he had Hawthorne’s driver’s license, insurance card, and other items because they

were in the truck. Appellant stated in the interview, “If I had killed [Hawthorne], bro,

you think I’m gonna be driving his truck?” But Sullivan also testified that Goodrich

told him that Appellant told her that he had killed Hawthorne and left him in the

woods. Sullivan further testified that people who die of an overdose are not typically

left where they will be hard to find.

                                        DISCUSSION

I.    Sufficiency of the Evidence to Support the Convictions

      In his first issue, Appellant contends that the evidence is insufficient to support

the jury’s verdict that he was guilty of capital murder because there is no evidence that

he had specific intent to kill Hawthorne, and in his third issue, he contends that the

evidence is insufficient to support the tampering conviction “because the State cannot

establish the time, place[,] and manner of Hawthorne’s death.”




                                            9
      A.     Standard of Review

      Federal due process requires that the State prove beyond a reasonable doubt

every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct.

2781, 2787 (1979); see U.S. Const. amend. XIV. In our due-process evidentiary-

sufficiency review, we view all the evidence in the light most favorable to the verdict

to determine whether any rational factfinder could have found the crime’s essential

elements beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). This standard gives full

play to the factfinder’s responsibility to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts. See

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Queeman, 520 S.W.3d at 622.

      The factfinder alone judges the evidence’s weight and credibility. See Tex. Code

Crim. Proc. Ann. art. 38.04; Queeman, 520 S.W.3d at 622. Thus, when performing an

evidentiary-sufficiency review, we may not re-evaluate the evidence’s weight and

credibility and substitute our judgment for the factfinder’s. Queeman, 520 S.W.3d at

622. Instead, we determine whether the necessary inferences are reasonable based on

the evidence’s cumulative force when viewed in the light most favorable to the

verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015); see Villa v. State,

514 S.W.3d 227, 232 (Tex. Crim. App. 2017) (“The court conducting a sufficiency

review must not engage in a ‘divide and conquer’ strategy but must consider the

cumulative force of all the evidence.”). We must presume that the factfinder resolved

                                            10
any conflicting inferences in favor of the verdict, and we must defer to that resolution.

Murray, 457 S.W.3d at 448–49.

      The standard of review is the same for direct and circumstantial evidence cases;

circumstantial evidence is as probative as direct evidence in establishing guilt. Jenkins

v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016).              We must scrutinize

circumstantial evidence of intent as we do other elements of an offense. Laster v. State,

275 S.W.3d 512, 519–20 (Tex. Crim. App. 2009). But when a record supports

conflicting inferences, we “must presume—even if it does not affirmatively appear in

the record—that the trier of fact resolved any such conflict in favor of the

prosecution, and must defer to that resolution.” Matson v. State, 819 S.W.2d 839,

846 (Tex. Crim. App. 1991).

      B.     Sufficient Evidence of Capital Murder

      In his first issue, Appellant complains that the evidence is insufficient to

support the guilty verdict for capital murder. He contends that there is no evidence to

show his specific intent to kill because there is no definitive cause of Hawthorne’s

death and no evidence about the circumstances of it. Appellant points out that

Hawthorne could have died of a drug overdose.

      The indictment alleged that Appellant intentionally caused Hawthorne’s death

“by a manner and means unknown to the grand jury” while “in the course of

committing or attempting to commit . . . robbery.”         See Tex. Penal Code Ann.

§§ 19.02(b)(1) (providing that a person commits murder by intentionally . . . causing

                                           11
another person’s death); 19.03(a)(2) (providing that a person commits capital murder

if he intentionally commits murder under section 19.02(b)(1) in the course of

committing a felony such as robbery). The intentional murder element of capital

murder is a “result of conduct” offense, which means the culpable mental state relates

to the result—causing the death. Roberts v. State, 273 S.W.3d 322, 328 (Tex. Crim.

App. 2008), abrogated on other grounds by Ex parte Norris, 390 S.W.3d 338, 341 (Tex.

Crim. App. 2012); Hughes v. State, 897 S.W.2d 285, 295 (Tex. Crim. App. 1994). A

person acts “intentionally” with respect to a result of his conduct when it is his

“conscious objective or desire to . . . cause the result.”      Tex. Penal Code Ann.

§ 6.03(a).

       An intent to kill “may . . . be inferred from circumstantial evidence, including [a

defendant’s] acts and words.” Ex parte Weinstein, 421 S.W.3d 656, 668 (Tex. Crim.

App. 2014). The jury may also consider events that occurred before, during, and after

the offense. Modarresi v. State, 488 S.W.3d 455, 463 (Tex. App.—Houston [14th Dist.]

2016, no pet.) (citing Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004)).

Motive is “a significant circumstance indicating guilt.”       Weinstein, 421 S.W.3d at

668 (internal quotation marks and citation omitted).            “Attempts to conceal

incriminating evidence, inconsistent statements, and implausible explanations to the

police are [also] probative of wrongful conduct and . . . circumstances of guilt,”

Guevara, 152 S.W.3d at 50, as well as “strong evidence of [a defendant’s]

consciousness of guilt.” Weinstein, 421 S.W.3d at 668. Further, evidence showing no

                                           12
remorse indicates intent. See Darby v. State, 145 S.W.3d 714, 721 (Tex. App.—Fort

Worth 2004, pet. ref’d). The issue here is whether the evidence supports beyond a

reasonable doubt the finding that Appellant intended to kill Hawthorne. See Fuentes v.

State, 991 S.W.2d 267, 272 (Tex. Crim. App. 1999) (“The distinguishing element

between felony murder and capital murder is the intent to kill.”).

      The evidence is sufficient to show Appellant’s specific intent to kill Hawthorne.

First, the jury heard evidence of murder: Appellant’s friends testified that he admitted

killing Hawthorne. Second, the jury heard evidence of motive: Ricky Ross testified

that Appellant said that he killed Hawthorne because he needed transportation back

to Maud.     Third, the jury heard evidence of Appellant’s hiding and destroying

evidence: Appellant’s friends in Maud testified about his burning items from the

truck, getting rid of the truck’s brush guard, and trying to sell the truck. Additionally,

FWPD personnel and anthropologist Dana Austin testified about large items being

piled on top of the body in the woods in what seemed a deliberate attempt to cover

up and conceal it, and Detective Sullivan testified that people who overdose are not

commonly left where they will be hard to find. Powell’s former girlfriend also

recognized some items found with the remains that had been Powell’s or in his

garage. Fourth, the jury heard evidence of several inconsistent statements by Appellant

regarding how he obtained the truck, whether Hawthorne was dead or alive, and

where Hawthorne was. Fifth, the jury heard evidence showing a lack of remorse.

Appellant told his friends that he “killed the motherfucker,” “left his ass in the

                                           13
woods,” and “beat [Hawthorne] and then left him in the woods for the hogs” and that

Hawthorne “had been taken care of.” Applying the appropriate standard of review,

we hold that the evidence is sufficient to support the jury’s capital murder verdict—

including the element of specific intent to kill—beyond a reasonable doubt. See Darby,

145 S.W.3d at 721; Torres v. State, 92 S.W.3d 911, 916–17 (Tex. App.—Houston [14th

Dist.] 2002, pet. ref’d) (overruling factual sufficiency challenge despite alleged lack of

physical evidence tying defendant to murder). We overrule Appellant’s first issue.

       C.     Sufficient Evidence of Tampering with a Corpse

       In his third issue, Appellant contends that the evidence is insufficient to

support the jury’s finding of guilty for tampering with a corpse when the evidence was

insufficient to establish the time, place, and manner of Hawthorne’s death. Section

37.09 of the Texas Penal Code provides that “[a] person commits an offense if the

person[,] knowing that an offense has been committed, alters, destroys, or conceals

any . . . thing with intent to impair its verity, legibility, or availability as evidence in any

subsequent investigation or official proceeding related to the offense.” Tex. Penal

Code Ann. § 37.09(d)(1). If “the thing altered, destroyed, or concealed is a human

corpse, . . . the offense is a” second-degree felony; otherwise, it is a third-degree

felony. Id. § 37.09(c). The indictment charged that on or about August 24, 2016,

knowing that a murder had been committed, Appellant “alter[ed], destroy[ed], or

conceal[ed] a human corpse, with intent to impair its verity or availability as evidence

in a subsequent investigation or any [related] official proceeding.” See id. § 37.09(c),

                                              14
(d)(1). Appellant argues that the evidence is not sufficient to show that a murder had

been committed before the tampering offense began, focusing on the lack of evidence

of a definitive cause of death, ambiguity of one of his remarks about killing

Hawthorne, the scattering of the remains, and evidence of animal scavenging.

      From all of the evidence, the jury could have inferred that Appellant killed

Hawthorne in Powell’s garage, transported Hawthorne’s body to the woods and

dumped it there, and covered the body with a crib, a mattress, and tree limbs to delay

the body’s discovery and to give himself time to flee. Applying the appropriate

standard of review, we therefore hold that the evidence is sufficient to support

Appellant’s conviction for tampering with a corpse. See, e.g., Berry v. State, Nos. 14-15-

00398-CR, 14-15-00399-CR, 14-15-00400-CR, 2016 WL 4036053, at *3 (Tex. App.—

Houston [14th Dist.] July 26, 2016, no pet.) (mem. op., not designated for publication)

(holding evidence sufficient for tampering and stating, “The jury could well have

considered all of the evidence discussed above concerning the convictions for murder

and arson in concluding that appellant endeavored to conceal proof of her crime.”);

Burks v. State, No. 14-14-00166-CR, 2015 WL 4463746, at *2–4 (Tex. App.—Houston

[14th Dist.] July 21, 2015) (mem. op., not designated for publication) (rejecting

appellant’s argument that there was no evidence that the complainant died in

appellant’s car and therefore no evidence that he tampered with a corpse by pushing

the body out of his car), aff’d, No. PD-0992-15, 2017 WL 3443982 (Tex. Crim. App.



                                           15
June 28, 2017) (op. on reh’g) (per curiam) (not designated for publication). We

overrule Appellant’s third issue.

II.       Omission of Felony Murder Instructions from the Jury Charge

          In his second issue, Appellant asks whether the trial court committed reversible

jury-charge error in its instructions on the lesser-included offense of murder when it

failed to include felony murder within either the abstract definitions or the application

paragraphs. In response, the State argues that the trial court was not required to sua

sponte instruct the jury on the lesser-included offense of felony murder.

          Unless a particular statute places a sua sponte duty on a trial court to give an

instruction, the trial court generally need not instruct the jury sua sponte on

unrequested traditional defenses and defensive issues because they are not “law

applicable to the case.” See Tex. Code Crim. Proc. Ann. art. 36.14; Tex. R. App. P.

33.1; Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013); Oursbourn v. State,

259 S.W.3d 159, 180 (Tex. Crim. App. 2008). A defendant who fails to ask for an

instruction on such issues, or to object to their exclusion, forfeits the alleged error on

appeal; thus, we do not engage in an Almanza egregious-harm review. See Tex. R.

App. P. 33.1; Vega, 394 S.W.3d at 519; Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim.

App. 1998); Almanza v. State, 686 S.W.2d 157, 171–74 (Tex. Crim. App. 1985) (op. on

reh’g).

          Caselaw treats lesser-included-offense instructions like defensive issues because

a lesser-included offense is not “applicable to the case” for jury-charge purposes

                                             16
unless the defense asks that it be included in the jury charge.           Tolbert v. State,

306 S.W.3d 776, 781 (Tex. Crim. App. 2010). If neither side requests a lesser-included

instruction, the trial court need not submit one sua sponte. See Delgado v. State,

235 S.W.3d 244, 250 (Tex. Crim. App. 2007); see also Tolbert, 306 S.W.3d at 781.

Moreover, if the defense did not request a lesser-included instruction, its omission is

not error that the defense can successfully claim on appeal. See Delgado, 235 S.W.3d at

250; see also Tolbert, 306 S.W.3d at 780. As the Texas Court of Criminal Appeals

recently stated after discussing instructions on mistake of fact, extraneous-offense

burdens of proof, and lesser-included offenses, “If the defendant fails to object to the

absence of these kinds of instructions in the jury charge, the trial court will have

committed no error at all; a trial court does not err by failing to instruct the jury on an

issue that was, by virtue of the defendant’s silence, simply inapplicable to the case.”

Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App. 2018).

      Because Appellant did not request an instruction on the lesser-included offense

of felony murder, we hold that the trial court did not err by not sua sponte including

it in the jury charge. See, e.g., Bright v. State, No. 07-15-00118-CR, 2016 WL 3659970,

at *8 (Tex. App.—Amarillo June 29, 2016, pet. ref’d) (mem. op., not designated for

publication) (holding same in capital murder case in which the trial court did not

instruct the jury on felony murder but did instruct the jury on other lesser-included

offenses of murder). We overrule Appellant’s second issue.



                                            17
                                  CONCLUSION

      Having overruled Appellant’s three issues, we affirm the trial court’s judgments.




                                                     /s/ Mike Wallach
                                                     Mike Wallach
                                                     Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: January 30, 2020




                                         18
