                                                                                                        ACCEPTED
                                                                                                    13-14-00338-CR
                                                                                    THIRTEENTH COURT OF APPEALS
          FILED                                                                            CORPUS CHRISTI, TEXAS
IN THE 13TH COURT OF APPEALS                                                                   6/11/2015 4:18:05 PM
  CORPUS CHRISTI - EDINBURG                                                                  CECILE FOY GSANGER
                                                                                                             CLERK

        6/11/15                           CAUSE NUMBER
                                           13-14-00338-CR
CECILE FOY GSANGER, CLERK
BY DTello                                                              RECEIVED IN
                                  IN THE COURT OF APPEALS FOR
                                                            13th COURT OF APPEALS
                                                        CORPUS
                               THE THIRTEENTH APPELLATE DISTRICT CHRISTI/EDINBURG, TEXAS
                                       AT CORPUS CHRISTI     6/11/2015 4:18:05 PM
                                                                CECILE FOY GSANGER
                                                                      Clerk
          _____________________________________________________________________________

                                         JOHNNY FLORES,
                                           APPELLANT

                                                 V.

                                       THE STATE OF TEXAS,
                                            APPELLEE

          ______________________________________________________________________________

                                        APPELLANT’S BRIEF


                   ON APPEAL FROM THE 148TH DISTRICT COURT, NUECES COUNTY



                                                      Nathan Burkett
                                                      State Bar No. 24058264
                                                      P.O. Box 3189
                                                      Corpus Christi, Texas 78463
                                                      (361) 883-8868
                                                      (361) 883-0733 (fax)
                                                      Attorney for Appellant



                                ORAL ARGUMENT IS NOT REQUESTED




                                                 i
                                                     TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL ................................................................................iii

TABLE OF AUTHORITIES..........................................................................................................iv

STATEMENT OF THE CASE........................................................................................................1

STATEMENT OF GROUNDS OF ERROR...................................................................................1

STATEMENT OF FACTS..............................................................................................................2

BRIEF OF THE ARGUMENT........................................................................................................3

PRAYER..........................................................................................................................................6

CERTIFICATE OF SERVICE........................................................................................................7

CERTIFICATE OF COMPLIANCE...............................................................................................7




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                        IDENTITY OF PARTIES AND COUNSEL

Appellant’s Trial Attorneys

       CECIL STARCHER
       State Bar No. 19060280
       102 N. Staples Street
       Corpus Christi, Texas 78401
       Phone: (361) 882-0800

       DAVID KLEIN
       State Bar No. 24007497
       P.O. Box 2446
       Corpus Christi, Texas 78403
       Phone: (361) 815-0053

Appellant’s Appellate Attorney

       Nathan Burkett
       State Bar No. 24058264
       P.O. Box 3189
       Corpus Christi, Texas 78463
       (361) 883-8868
       (361) 883-0733 (fax)

Appellee’s Attorney

       Mark Skurka
       Nueces County District Attorney
       901 Leopard Street, Room 206
       Corpus Christi, Texas 78401
       (361) 888-0410




                                         iii
                                INDEX OF AUTHORITIES

State Cases

Ojeda v. State, 712 S.W.2d 742 (Tex. Crim. App. 1986)

Bell v. State, 693 S.W.2d 434 (Tex. Crim. App.1985)

Moore v. State, 574 S.W.2d 122 (Tex. Crim. App. 1978)

Cavazos v. State, 382 S.W.3d 377 (Tex. Crim. App. 2012)

Saunders v. State, 840 S.W.2d 390 (Tex. Crim. App. 1992)




                                             iv
                                 CAUSE NO. 13-14-00338-CR

                           IN THE COURT OF APPEALS
                     FOR THE THIRTEENTH DISTRICT OF TEXAS
                               AT CORPUS CHRISTI

______________________________________________________________________________

                                      JOHNNY FLORES,
                                                             Appellant

                                                V.

                                   THE STATE OF TEXAS,
                                                    Appellee

______________________________________________________________________________

                                     APPELLANT’S BRIEF

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

       COMES NOW JOHNNY FLORES, Appellant in this cause, and files this Appellant’s

Brief, and in support thereof would show as follows:

                               I. STATEMENT OF THE CASE

       Appellant was indicted with one count of murder alleged to have occurred on July 4,

2013. RR Vol. 3, p. 15. After the close of evidence, Appellant requested a manslaughter

instruction, a lesser included offense. RR Vol. 4, pp. 120-121. After a lengthy argument, the

trial court denied Appellant’s instruction for the manslaughter instruction. RR Vol. 4, p. 131.

The jury found Appellant guilty of murder. RR Vol. 4, p. 170. The jury did not find sudden

passion, and assessed Appellant’s punishment at life in prison and a $10,000.00 fine. RR Vol. 5,

p. 169. This timely appeal ensued.




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                       II. STATEMENT OF GROUNDS OF ERROR

1.     THE TRIAL COURT ERRED IN DENYING APPELLANT’S REQUEST FOR A
       JURY INSTRUCTION ON THE LESSER INCLUDED OFFENSE OF
       MANSLAUGHTER BECAUSE THE INTENT EVIDENCE ADDUCED AT TRIAL
       WAS SUBJECT TO MULTIPLE INTERPRETATIONS.

                                           III. FACTS

       The State alleged that Appellant caused the death of Terry Mechell, his girlfriend, by

asphyxia. Appellant’s custodial interrogation video with Corpus Christi Police Detective Ralph

Lee was admitted into evidence and published to the jury. RR Vol. 6, SX-4. The initial conflict

arose because Appellant believed he had contracted a sexually transmitted disease from Mechell,

a prostitute. Id. Appellant admitted to striking and, at some point, choking Terry Mechell. Id.

At approximately seven minutes into the video interview, Appellant states, “I had no idea it was

over until it was over. I snapped and I checked her pulse and she has a light pulse.” Id. He then

contemplated suicide with a knife, but ultimately decided to call 911. Id. Appellant stated that

he had been diagnosed with schizoaffective disorder, was not currently on medication and had

received services through MHMR on and off for about four years. Id.

       Dr. Ray Fernandez, the Nueces County Medical Examiner, testified for the state. RR

Vol. 3, p. 177 et seq. Dr. Fernandez testified that in performing an autopsy, Mechell’s eyelids

and the white areas of her eyes showed petechial hemorrhages, or pinpoint size bleeds. RR Vol.

3, pp. 192-193. Dr. Fernandez testified that petechial hemorrhages typically occur in an “on and

off” type pressure as opposed to continuous pressure applied to the mouth, nose or throat. RR

Vol. 3, p. 93-94. Dr. Fernandez testified that even being in a “scuffle” could cause the petechial

hemorrhages. RR Vol. 3, p. 213. Although Dr. Fernandez noted that Mechell suffered a broken



                                                 2
nose, Dr. Fernandez did not note whether or not the broken nose caused a total obstruction of the

airway. RR Vol 3, p. 214. Dr. Fernandez conceded that the broken nose could have been caused

by blunt trauma, such as a punch. Id. There was no damage to Mechell’s windpipe or scratches

or bruising to the neck, any of which would have been consistent with strangulation. RR. Vol. 3,

pp. 216-217, 219.

       During the defense case in chief, testimony was taken of Troy Martinez, Psy. D., who

examined and evaluated Appellant’s mental condition and history. RR Vol. 4, p. 50 et seq. Dr.

Martinez also examined Appellant’s prior mental health records. RR Vol. 4, p. 62. Dr. Martinez

testified that Appellant had been diagnosed and treated for a “major mental illness,” although the

specific diagnosis at different times included both bipolar I disorder and schizoaffective disorder.

RR Vol. 4, pp. 66-67. Since Appellant had been off of his medications for several months before

July 4, 2013, Dr. Martinez testified that there would have likely been a deterioration of

Appellant’s mental condition from the time that he was earlier medicated. RR Vol 4., pp. 70-71.

Dr. Martinez further testified that when a person with a major mental illness, like Appellant,

suffers a deterioration from lack of medication, that person’s judgment, impulse control and

stability would be negatively affected. RR Vol 4., p. 82. Dr. Martinez opined that a person with

a major mental illness and a lack of medicine, such as Appellant, could act recklessly. Id.

                            IV. SUMMARY OF THE ARGUMENT

       Appellant requested and was denied a jury charge instruction on the lesser included

offense of manslaughter. Because manslaughter is a lesser included offense of murder, as alleged

in this case, and because the evidence adduced at trial regarding intent was subject to multiple

interpretations, the trial court erred in denying Appellant’s requested instruction.


                                                  3
                               V. BRIEF OF THE ARGUMENT

       It is well established that if any evidence raises the issue of a lesser included offense, a

charge on that offense must be included in the trial court's charge. Ojeda v. State, 712 S.W.2d

742 (Tex. Crim. App. 1986), citing Bell v. State, 693 S.W.2d 434 (Tex. Crim. App.1985), and

Moore v. State, 574 S.W.2d 122 (Tex. Crim. App. 1978). The Aguilar/Rousseau test determines

an instruction on a lesser-included offense should be given to the jury, with the court deciding 1)

if the proof necessary to establish the charged offense also includes the lesser offense; and 2)

whether the evidence shows that if the Appellant is guilty, he is guilty only of the lesser offense.

Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012). In Cavazos, the Court of

Criminal Appeals held that manslaughter is a lesser included offense of murder where the State

alleges that the defendant intends to cause serious bodily injury by committing an act clearly

dangerous to human life. Id at 384. In this case, the State of Texas alleged that Appellant “with

the intent to cause serious bodily injury to an individual, namely, Terry Mechell Ramos, commit

an act clearly dangerous to human life that caused the death of said Terry Mechell Ramos by

asphyxia.” RR Vol. 3, p. 15. Like in Cavazos, manslaughter is a lesser included offense of

murder, as alleged by the State of Texas in this case, and Appellant has met the first prong of the

Aguilar/Rousseau test. The trial court even acknowledged as much. RR Vol. 4, pp. 127-128.

       There are two ways by which Appellant can satisfy the second prong of the test: 1) there

may be evidence that tends to refute or negate other evidence establishing the greater offense;

and 2) if the evidence presented is subject to different interpretations. Saunders v. State, 840

S.W.2d 390, 391-92 (Tex. Crim. App. 1992). The latter of the two is applicable in this case. In

this case, intent to cause serious bodily injury was only shown by circumstantial evidence.


                                                  4
Similarly, in Saunders, the defendant, charged with murder with intent to kill a baby by

squeezing the back of his head, requested and was refused an instruction on the lesser included

offense of criminally negligent homicide. Id. at 391.    The only trial evidence on intent was a

witness who saw, fifteen days prior to the child’s death, the defendant squeezing the back of the

baby’s head, and several other injuries consistent with hitting, shaking, blows or a fall. Id. The

Court of Criminal Appeals concluded that the same circumstantial evidence of intent to kill could

also be interpreted to show criminal negligence, noting “a jury could also conclude based on the

same evidence that appellant may not have known his actions could kill the baby, even though he

ought to have been aware of this risk.” Id. at 392.

       In this case the facts are remarkably similar to Saunders, in that there is no direct

evidence of intent. The facts of this case simply show that Appellant squeezed Mechell’s neck.

RR Vol. 6, SX-4. Detective Lee did not ask and Appellant did not volunteer that he intended to

kill or injure Mechell, his knowledge that her death could result, or his awareness that a risk of

death existed. Id.; See also Saunders, 840 S.W.2d at 392. Like any other witness, the jury, as

the exclusive judges of credibility, could have considered all, some or none of the testimony of

Dr. Martinez, Dr. Fernandez and Appellant’s own statements in the interview. Dr. Fernandez

failed to determine whether or not the nasal fracture fully obstructed Mechell’s airway; thus, he

failed to rule out that a single punch to the nose could have possibly caused the asphyxiation that

formed the basis of his opinion. RR Vol 3, p. 214. The jury could have concluded, as Dr.

Fernandez states was possible, that the petechial hemorrhages noted were caused by the fight,

and not strangulation, or that they were caused by a reckless “on and off” pressure as opposed to

a continuous one. RR Vol 3, p. 93-94, 213 Furthermore, the jury could have considered that


                                                 5
Appellant, as a person with a major mental illness according to Dr. Martinez’ testimony, could

have acted recklessly as opposed to intentionally in the manner of his actions. RR Vol 4., p. 82.

Even the trial prosecutor conceded that the difference between specific intent, recklessness and

criminal negligence was at issue in the case, arguing to the trial court that Dr. Martinez “cannot

specifically say whether that individual was negligent or reckless, a jury gets to decide that.

That's an ultimate jury question.” RR Vol. 4, pp. 80-81.

        The evidence elicited at trial and described above shows that the intent element of the

case in question was subject to multiple interpretations. Thus, Appellant was entitled to a jury

instruction on the lesser included offense of manslaughter, and the trial court erred in denying

Appellant’s request for a jury instruction on the lesser included offense of manslaughter.

                                             PRAYER

        WHEREFORE, PREMISES CONSIDERED, Appellant Johnny Flores prays that this

court sustain Appellant’s ground of error, reverse the judgment of the trial court, and remand this

cause to the trial court for a new trial.

                                              Respectfully submitted,


                                              The Law Offices of Nathan Burkett
                                              P.O. Box 3189
                                              CORPUS CHRISTI, TX 78463
                                              Tel: (361) 883- 8868
                                              Fax: (361) 883- 0733


                                              By: s/ Nathan Burkett
                                                 Nathan Burkett
                                                 State Bar No. 24058264
                                                 burkett.nathan@gmail.com
                                                 Attorney for Johnny Flores


                                                  6
                                  CERTIFICATE OF SERVICE

       This is to certify that on June 11, 2015, a true and correct copy of the above and foregoing

brief was served on the Nueces County District Attorney's Office at 901 Leopard St., Room 206,

Corpus Christi, Texas, by hand delivery.



                                                       /s Nathan Burkett
                                                       Nathan Burkett




                              CERTIFICATE OF COMPLIANCE

       In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify that the number

of words in this brief, excluding those matters listed in Rule 9.4(i)(1), is 1,489.



                                                       /s Nathan Burkett
                                                       Nathan Burkett




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