
 
 





NUMBER 13-01-333-CR


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG 




MELVIN JAMES SCHROEDER,	Appellant,

v.


THE STATE OF TEXAS,	Appellee.



On appeal from the 252nd District Court of Jefferson County, Texas




O P I N I O N


Before Chief Justice Valdez and Justice Rodriguez and Baird (1)

Opinion by Justice Baird


	Appellant was charged by indictment with the offense of murder.  A jury
convicted appellant of the charged offense and assessed punishment at confinement
for life the Texas Department of Criminal Justice--Institutional Division.  Appellant
contends the trial court erred in failing to charge the jury on the lesser offense of
manslaughter.  For the following reasons, we agree and reverse the judgment of the
trial court.
I.  Lesser-included Offenses.
	A charge on a lesser-included offense must be given if (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 rationally to find that,
if the defendant is guilty, he is guilty only of the lesser offense.  Rousseau v. State,
855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993); see also Tex. Code Crim. Proc.
Ann. art. 37.09 (Vernon 1981).  The parties agree that the first prong of the 
Rousseau test has been met; voluntary manslaughter is a lesser-included offense of
murder under Code of Criminal Procedure Article 37.09(3).  Moore v. State, 969
S.W.2d 4, 10 (Tex. Crim. App. 1998).
	The issue in this case is whether there is some evidence in the record that
would have permitted a jury to rationally find that appellant, if guilty of any offense,
was guilty only of manslaughter.  In other words, there must be some evidence from
which a jury could rationally acquit the defendant of the greater offense while
convicting him of the lesser-included offense.  Moore, 969 S.W.2d at 8.  In resolving
this issue, the credibility of the evidence and whether it conflicts with other evidence,
or is controverted may not be considered, and, regardless of its strength or weakness,
if any evidence raises the issue that the defendant was guilty only of the lesser
offense, then the charge must be given.  O'Brien v. State, 89 S.W.3d 753, 755 (Tex.
App.-Houston [1st Dist.] 2002, no pet.) (citing Banda v. State, 890 S.W.2d 42, 60
(Tex. Crim. App. 1994); Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App.
1992)).
II.  Factual Summary.
	Whether the defendant was entitled a charge on a lesser-included offense is
determined on a case-by-case basis.  Livingston v. State, 739 S.W.2d 311, 336 (Tex.
Crim. App. 1987).  To make this determination, we consider all of the evidence
presented by the State and the defendant.  Havard v. State, 800 S.W.2d 195, 216
(Tex. Crim. App. 1989) (op. on reh'g).  Therefore, we will set forth the evidence in
considerable detail.
A.  The State's Case.
	Ramiro Cardenas was appellant's neighbor.  Between 5:30 p.m. and 5:50 p.m.
on the date of the alleged offense, Cardenas heard three loud noises, which sounded
like someone was "throwing rocks," coming from appellant's home.
	Appellant telephoned 911 and a recording of that conversation was admitted
into evidence.  The operator testified appellant blurted out in a nervous voice that he
and his wife had struggled over a firearm and "the gun went off a couple of times,"
shooting his wife.  Appellant stated, "I think I hit her in the chest."
	Randal Rice a patrol officer of the Port Arthur Police Department was dispatched
to appellant's home in response to a male/female disturbance involving a firearm.  Rice
found appellant's wife, the decedent, lying across the threshold of the front door, and
radioed for EMS personnel.  Rice entered the kitchen and found a .357 handgun on the
counter.  The weapon contained five spent shells and one unfired cartridge.  Also in
the kitchen, Rice saw a broken mirror on the floor, and two bullet holes.  The house
was in disarray, indicating a struggle had taken place in the kitchen.  According to
Rice, this was consistent with a husband and wife fighting over a gun.
	Allen Acord, also of the Port Arthur Police Department, was dispatched to
appellant's home.  Acord took appellant, who was cooperative, into custody.  The
search of appellant resulted in the discovery of a loaded double barreled Derringer
pistol, a lock blade knife, and some bullets.  Acord did not observe any injuries on
appellant, but did see blood on his left forearm.  Acord read appellant his Miranda
warnings.  Appellant replied, "It was an accident" and "I did not mean to."  Appellant
displayed no emotion when making these statements.  Acord's report revealed that he
was dispatched to a scene where a man "accidentally shot his wife."  Acord stated
he had never investigated an accidental shooting where the decedent had sustained
two or more gunshot wounds.
	Patrick Queen, of the forensics division of the Port Arthur Police Department
was sent to appellant's home.  He examined the bullet holes found by Rice.  The hole
in the floor contained the entire bullet.  The bullet fired into the ceiling, however, went
through the roof and, therefore, was not recovered.  Queen examined the firearm
recovered from the kitchen counter for fingerprints, but was unable to make any
positive identification.  He tested the hands of appellant and the decedent to determine
if they had recently fired a gun.  Juan Rojas of the Texas Department of Public Safety
crime lab in Austin testified that both tests were negative. (2)  Rojas testified that the
submission form accompanying the samples stated appellant and the decedent had
struggled over a firearm.
	The coroner examined the decedent, a female who was 5' 8" tall and weighed
200 pounds.  The decedent had been shot thrice; two of the shots entered the
decedent from the side and the third from the back.  In the coroner's opinion, all shots
were fired from a distance greater than twenty to twenty-four inches.  Further, the
decedent's injuries were not consistent with a struggle involving a gun.  The coroner
opined that a gun shot wound to the back generally means the victim was trying to
get away.  This would indicate the decedent had her back to appellant at some point.
The coroner testified that it was possible that one of the bullets ricocheted into the
decedent.
B.  Appellant's Case.
	Trudy Henderson, the decedent's older sister, testified she, along with her
mother and nephew, went to the decedent and appellant's home on the date of the
alleged offense for a Memorial Day barbecue.  Trudy said her sister was normally
sweet and loving, but that she had a temper that could make her mean and violent.
Before meeting appellant, the decedent had been in an altercation wherein she threw
another female on top of a car.  Trudy stated the decedent carried a gun in her purse
at all times, and identified the firearm recovered from the kitchen as the same or
similar gun.  Trudy did not notice anything out of the ordinary before leaving between
5:00 p.m. and 5:30 p.m.  Specifically, Trudy testified appellant and the decedent had
not been arguing, fighting, or complaining.  She stated she never felt appellant would
be a danger to the decedent although he had, on many occasions, accused the
decedent of being unfaithful. (3)  Upon being notified by the Justice of the Peace of the
decedent's death, Trudy returned to the residence and saw the home in disarray which
appeared to have resulted from a struggle.
	The decedent's mother, Rita Henderson, testified the decedent was a violent
person who would not be pushed around by anyone.  Rita stated the decedent carried
a gun at all times and had seen the decedent draw the firearm in anger on a previous
occasion.  On the date of the alleged offense, Rita did not notice anything out of the
ordinary; the couple was not yelling, or fighting with one another.  In fact, Rita saw
appellant kiss the decedent goodbye before he went to the store.  Rita testified the
decedent was "fidgety" because she wanted to go to Louisiana to gamble. (4)  Rita
stated that the decedent and appellant had a mutually distrusting and jealous
relationship.  Rita believed that if appellant pushed the decedent, he would be killed
by the decedent.
	Appellant testified that he met the decedent in the Spring of 1992.  After
several discreet meetings, appellant left his wife to be with the decedent.  The two
married in 1994, and lived together with the decedent's son.  Even though appellant
had prostrate problems that affected his ability to perform sexually, he claimed the
decedent was reassuring.  In 1999, the couple used their tax refund to improve their
home.  Appellant testified the marriage suffered from financial problems and "jealousy
on both sides."  Appellant identified a letter prepared by the decedent and signed by
appellant pledging his fidelity to the decedent.  See n.3, supra.  Both appellant and the
decedent carried weapons on a daily basis.  In fact, appellant bought the decedent the
.357 magnum that caused her death.  Appellant had never threatened to kill the
decedent, and the two never had a physical confrontation.
	On the date of the alleged offense, appellant stated there had been no
arguments.  After their guests left, the decedent wanted to gamble.  This led to an
argument because of the couple's financial problems.  Appellant testified that when
an argument started, he would leave the house to let things cool down.  On this
occasion, he went to the bedroom to change from his shorts into his pants.  The
decedent continued the argument by hollering at appellant from the kitchen.  Appellant
heard the sound of things breaking in the kitchen.  As appellant exited the bedroom
he saw the decedent pointing a gun at him, and saying:  "I'm going to kill you, you
mother fucker you sorry mother fucker.  I'm going to kill."  At this point, the two
began to wrestle in the kitchen over the gun.  They fell to the floor "between the
kitchen and dining room area."  The decedent was on top and then the two began
rolling, and rolled to the front door.  Appellant heard hollering and screaming and then
all of a sudden loud noises.  Appellant immediately telephoned 911.
	Appellant stated he struggled with the decedent because he thought he could
take the gun away from her.  Appellant testified on cross-examination that he pushed
the decedent's arm and grabbed the gun.  The decedent with her hand hit appellant
in the back of the head, and appellant had the gun.  Then the decedent grabbed the
gun away from appellant.  Appellant did not remember two shots being fired in the
kitchen.  Appellant stated that he had difficulty recalling all of the events because he
blacked-out during the struggle.  Appellant agreed that it would be "far fetched" for
the decedent to have shot herself in the back during the struggle.
	The trial judge instructed the jury on the defensive issues of accident and self
defense.  However, he denied appellant's requested instruction on the lesser-included
offense of manslaughter.
III.  Analysis.
	A conviction for manslaughter requires a finding that the defendant recklessly
caused the decedent's death.  Tex. Pen. Code Ann. § 19.04 (Vernon 1994). (5)
Manslaughter is, by definition, an accidental homicide, committed with recklessness.
Lawson v. State, 64 S.W.3d 396, 398 (Tex. Crim. App. 2001) (Cochran, J.,
concurring).  "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."  Tex. Pen. Code Ann. § 6.03(c)
(Vernon 1994).  A manslaughter charge is required if there is any evidence from which
a jury could conclude the defendant did not intentionally or knowingly kill an individual,
but consciously disregarded a substantial and unjustifiable risk the result would occur. 
Lugo v. State, 667 S.W.2d 144, 147 (Tex. Crim. App. 1984).  "[A] defendant may
be shown to be guilty only of the lesser offense if the evidence presented is subject
to different interpretations."  Saunders, 840 S.W.2d at 392.  Moreover, it is
immaterial whether the evidence "fit[s] in with the larger theme of [the] defendant's
testimony," "whether [it] was admitted by the State or the defense," and whether it
is "strong or weak, unimpeached or contradicted."  Jones v. State, 984 S.W.2d 254,
257 (Tex. Crim. App. 1998).
	In determining whether appellant was entitled to a charge on a lesser-included
offense, we view the evidence in the light most favorable to appellant.  Granger v.
State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999).  Reviewing the evidence in this
manner, appellant exited his bedroom and saw the decedent in the kitchen armed with
a firearm, and appellant attempted to forcefully disarm the decedent.  A struggle
ensued, during which the decedent was fatally injured.  Appellant's version of the
events is corroborated in several respects: (a) Officer Rice and Trudy testified the
home was in disarray which indicated a struggle; Rice further testified this was
consistent with a husband and wife fighting over a gun; (b) appellant stated to Officer
Acord:  "It was an accident" and "I did not mean to;" (c) Officer Acord reported he
was dispatched to a scene where a man "accidentally shot his wife;" (d) Officer
Queen's submission form to Rojas stated appellant and the decedent had struggled
over a firearm; (e) Rita Henderson testified that she had seen the decedent draw the
firearm in anger on a previous occasion; and, (f) the decedent's death was caused by
her own firearm which she kept in her purse.
	Both the State and appellant rely on the case of Roberts v. State, 682 S.W.2d
438, (Tex. App.-Fort Worth 1984), pet. dism'd, improvidently granted, 765 S.W.2d
789 (Tex. Crim. App.1989), as being similar to the instant case.  In Roberts, the
defendant shot the decedent twice in the upper chest at a range of six to twelve
inches.  Roberts, 682 S.W.2d at 442. (6)  The defendant then drove to the emergency
room, and told a nurse that he had been shot and that the police were after him
because he had killed a couple of people.  Id.  The defendant testified he went to the
decedent's apartment to trade his pistol for her shotgun.  Id.  He said he threw the
pistol on the floor when the decedent asked for it.  Id.  The defendant said she (the
decedent) was holding a shotgun at the time, and that he shot the decedent while they
were struggling over possession of his pistol after she had shot him with the shotgun.
He said that he did not have any intention of harming her.  Id.  The Roberts Court held
the defendant's testimony raised the issue of recklessness and, therefore, the trial
judge erred in failing to charge the jury on the lesser offense of involuntary
manslaughter.  Id.  The holding in Roberts is consistent with the many cases we have
found dealing with reckless acts and firearms.  Ross v. State, 861 S.W.2d 870, 875
(Tex. Crim. App.1992) (involuntary manslaughter charge required when gun
"accidentally" discharged while being pointed at victim's head); Hayes v. State,728
S.W.2d 804 (Tex. Crim. App.1987) (charge on recklessness required when defendant
retrieved gun from his apartment and shot complainant in ensuing struggle); Bell v.
State, 693 S.W.2d 434 (Tex. Crim. App. 1985) (defendant firing four shots into an
occupied trailer home was entitled to reckless conduct charge); Salinas v. State, 644
S.W.2d 744, 746 (Tex. Crim. App. 1983) (discharge of pistol with no intent to kill
merited charge on involuntary manslaughter); Johnson v. State, 828 S.W.2d 511,
514-15 (Tex. App.-Waco 1992, pet. ref'd) (defendant firing at police officer entitled
to third-degree aggravated assault charge, including recklessly, due to evidence of lack
of intent to kill); Mullins v. State, 767 S.W.2d 166, 169-70 (Tex. App. -Houston [1st
Dist.] 1988, no pet.) (defendant firing shot at victim should have been given reckless
conduct charge); Hernandez v. State, 742 S.W.2d 841, 843 (Tex. App.-Corpus
Christi 1987, no pet.) (defendant who fired "to scare" entitled to involuntary
manslaughter charge); Sadler v. State, 728 S.W.2d 829, 831 (Tex. App.-Dallas 1987,
no pet.) (evidence sufficient to prove involuntary manslaughter where death resulted
when husband and wife struggled over firearm).
	In light of this authority and the evidence recounted above, we must hold there
is some evidence that appellant acted recklessly, and that the jury could have rationally
found that appellant, if guilty, was guilty only of manslaughter.  As the Court of
Criminal Appeals stated in Moore: "Any evidence that the defendant is guilty only of
the lesser included offense is sufficient to entitle the defendant to a jury charge on the
lesser included offense."  Moore, 969 S.W.2d at 8 (citing Bignall v. State, 887 S.W.2d
21, 23 (Tex. Crim. App. 1994)).  The fact that this evidence may be weak is
irrelevant.  Saunders, 840 S.W.2d at 391 ("[R]egardless of the strength or weakness
of the evidence, if any evidence raises the issue that the defendant was guilty only of
the lesser offense, then the charge must be given.")  The fact that appellant's
testimony was controverted by the testimony of the coroner is also immaterial to our
analysis.  Moore, 969 S.W.2d at 8 ("court may not consider whether the evidence is
. . . controverted, . . . ."); Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999)
("[A]n accused has the right to an instruction on any defensive issue raised by the
evidence, whether that evidence is . . . contradicted, . . . .").  Furthermore, the trial
judge's doubts about the credibility of the evidence giving rise to the lesser offense is
of no moment.  Id. (defendant entitled to charge on defensive theory "regardless of
what the trial court may or may not think about the credibility of the evidence.");
Hayes, 728 S.W.2d at 807 (citing Shaw v. State, 510 S.W.2d 926 (Tex. Crim. App.
1974) (opinion on motion for rehearing), Carter v. State, 515 S.W.2d 668 (Tex. Crim.
App. 1974)).  Accordingly, we hold the trial judge erred in failing to charge on the
lesser-included offense of manslaughter.
IV.  Harm Analysis.
	The erroneous refusal to give a requested instruction on a lesser-included
offense is subject to an Almanza harm analysis.  Saunders, 840 S.W.2d at 392;
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on rehearing). 
When the error occurs despite the defendant's objection, reversal is required if the
error resulted in some harm to the accused.  Arline v. State, 721 S.W.2d 348, 351
(Tex. Crim. App. 1986); Almanza, 686 S.W.2d at 171.  If the absence of the lesser-included offense instruction left the jury with the sole option either to convict the
defendant of the charged offense or to acquit him, a finding of harm is essentially
automatic because the jury was denied the opportunity to convict the defendant of the
lesser offense.  Saunders v. State, 913 S.W.2d 564, 571 (Tex. Crim. App. 1995). 
In cases such as this, there is a distinct possibility that the jury, believing the
defendant to have committed some crime, but given only the option to convict him of
the greater offense, may have chosen to find him guilty of that greater offense, rather
than to acquit him altogether, even though it had a reasonable doubt that he really
committed the greater offense.  Id. (citing Beck v. Alabama, 447 U.S. 625, 634
(1980)).
	In the instant case, the jury had two options:  find appellant guilty of murder or
acquit him.  It chose to convict him of murder and assessed punishment at
confinement for life, the maximum sentence for the charged offense.  See Tex. Pen.
Code Ann. §§ 19.02, 12.32 (Vernon 1994).  On the other hand, the range of
punishment for manslaughter is from two to twenty years confinement.  Tex. Pen.
Code Ann. §§ 19.04, 12.33 (Vernon 1994).  Appellant was harmed because the jury
was not given the opportunity to find him guilty of the lesser offense, which it could
rationally have done based on the evidence.
	Appellant's first point of error is sustained.  The judgment of the trial court is
reversed, and the case remanded for further proceedings.  Tex. R. App. P. 43.2(d).

  
							CHARLES F. BAIRD
							Justice

Publish.
Tex. R. App. P. 47.2(b).

Opinion delivered and filed this
the 13th day of February, 2003.
1.  Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by
the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003
(Vernon 1998).
2.   A negative result means one of three things:  (a) that the individual had not recently
fired a weapon, or been in the immediate proximity when the weapon was fired; (b) the
individual removed the residue by applying some type of moisture to the hands; or (c) the
weapon or ammunition did not release residue when fired.
3.   The State introduced two statements signed by the decedent wherein she claimed
her fidelity to appellant.  These statements were dated June 20, 1997, and February
17,1999.
4.   Both Trudy and Rita testified that the decedent enjoyed gambling on "the boats" in
St. Charles, Louisiana.  Her gambling caused financial problems that was a source of
acrimony in the marriage.
5.   For many years, the offense of recklessly causing the death of an individual was
called "involuntary manslaughter." See Act of 1973, 63d Leg., R.S., ch. 399, §§ 1, sec.
19.05(a)(1), 1973 Tex. Gen. Laws 913.  By a legislative act which took effect on September
1, 1994, the offense was renamed "manslaughter" and renumbered as Texas Penal Code
section 19.04(a), without substantive change. See Act of June 19, 1993, 73d Leg., R.S.,
ch. 900, §§ 1.01, sec. 19.04(a), 1993 Tex. Gen. Laws 3614.  Many of the cases cited
below were decided in the context of "involuntary manslaughter."
6.   The State argues the "critical distinction" between Roberts and the instant case is
that Roberts "involved a single gunshot, while the current case involved three gunshot
wounds."  State's br. pp. 6-7.  However, this "critical distinction" is not supported by the
opinion which states:  "Wanda had been shot twice in the upper chest at a range of six to
twelve inches by a gun firing a bullet over .30 caliber. The lower of these wounds caused her
death a few minutes after the shot was fired."  Roberts, 682 S.W.2d at 442.
