                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo

                                      No. 07-12-00316-CR


                               ALLEN BOLING, APPELLANT

                                              V.

                            THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 364th District Court
                                    Lubbock County, Texas
                Trial Court No. 2012-434,617, Honorable Cecil Puryear, Presiding

                                      August 26, 2013

                              MEMORANDUM OPINION
                     Before CAMPBELL and HANCOCK and PIRTLE, JJ.

       Appellant, Allen Boling, appeals his conviction for capital murder.1 The State did

not seek the death penalty and appellant was automatically sentenced to life in the

Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ) without the

possibility of parole.2    Appellant appeals contending that the trial court committed




       1
           See TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2012).
       2
           See id. § 12.31(a) (West 2011).
reversible error by denying his request for a lesser-included offense instruction on

criminally negligent homicide in its charge to the jury. We will affirm.


                             Factual and Procedural Background


       In January of 2011, appellant was living with his girlfriend, Mary Geralds, in a

trailer home in rural Lubbock County. Mary’s 16 year old daughter, MG, also resided

with them.    On January 19, 2011, appellant learned that the deceased, Russell

McKinney, had been accused of raping MG the previous week. As a result of MG’s

outcry, a 911 call was placed to the Lubbock County Sheriff’s Office. A deputy sheriff

was dispatched and took an initial report regarding the alleged rape.           The deputy

advised Mary to go to the sheriff’s office the next day to follow up on the report.


       Following the report to the sheriff’s deputy, appellant and his friend, John

Giddings, left the trailer and proceeded to McKinney’s trailer home.         Appellant and

McKinney knew each other, and appellant had become angry at McKinney because

McKinney had been in contact with Mary while appellant was out of the trailer home

appellant shared with her.


       When appellant and Giddings arrived at McKinney’s trailer, appellant raced

around the trailer until he found a door unlocked. Appellant went in the trailer and

proceeded toward McKinney’s bedroom. On the way to McKinney’s bedroom, appellant

found a large metal pipe which he picked up. McKinney was asleep in his bedroom

and, as soon as appellant got into the room, he proceeded to beat McKinney with the

metal pipe. Appellant admitted to hitting McKinney four to six times with the pipe. His

blows struck McKinney on the head, upper torso, arms, and legs.              Appellant and

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Giddings left the trailer only to return to retrieve the pipe and take a “PlayStation” found

in the trailer.   Appellant admitted that, when he returned to the trailer, he heard

McKinney choking on his own blood.


        At the conclusion of the testimonial phase of the trial, the trial court presented a

proposed jury charge. Contained in the court’s charge, in addition to the charge of

capital murder, were the lesser-included charges of murder, manslaughter, and

aggravated assault.      Appellant requested an additional lesser-included offense of

criminally negligent homicide.     The trial court denied the request for the additional

lesser-included offense.     The jury subsequently convicted appellant of the greater

offense of capital murder. Appellant was sentenced to life in the ID-TDCJ without the

possibility of parole.


        Appellant appeals contending that the refusal of the trial court to give the lesser-

included charge of criminally negligent homicide was reversible error. We disagree and

will affirm.


                                    Standard of Review


        In reviewing allegations of charge error, we first must ask the question whether

there was error in the charge. Sakil v. State 287 S.W.3d 23, 25 (Tex.Crim.App. 2009).

If there was error and if the appellant objected to the error at trial, reversal is required if

the error is calculated to injure the rights of the appellant. Id. Stated another way, there

must be some harm to the appellant. Id. at 25-26. In the case before the Court, the

parties agree that appellant’s objection to the lack of the lesser-included charge was

made at the appropriate time.

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                                Lesser-Included Offenses


       A reviewing court applies a two-prong test to determine if an appellant was

entitled to a lesser-included instruction.    See Hall v. State, 225 S.W.3d 524, 535

(Tex.Crim.App. 2007). The first question requires our determination of “whether the

lesser offense actually is a lesser-included offense of the offense charged as defined by

article 37.09.” Hall v. State, 158 S.W.3d 470, 473 (Tex.Crim.App. 2005); see TEX. CODE

CRIM. PROC. ANN. art. 37.09 (West 2012).3 This first question is a question of law that

requires the court to compare the elements as alleged. See Hall, 225 S.W.3d at 535-

36.


       The second prong requires that there be some evidence in the record to permit a

rational jury to find, if the appellant is guilty, he is guilty only of the lesser-included

offense. See id. at 536. Any evidence more than a scintilla may be sufficient to entitle

an appellant to a lesser-included charge. See id. We review the entire record without

deciding if the evidence is credible, controverted, or in conflict with other evidence. Hall,

158 S.W.3d at 473. The evidence may show a person is guilty of only the lesser

offense if the evidence refutes or negates other evidence that establishes the greater

offense, or the evidence may be subject to differing interpretations. Cavazos v. State,

382 S.W.3d 377, 385 (Tex.Crim.App. 2012).




       3
          Further reference to the Texas Code of Criminal Procedure will be by reference
to “art. ____.”

                                             4
                                           Analysis


       In the case before the Court, we and the parties agree that criminally negligent

homicide is a lesser-included offense of capital murder as a matter of law.               See

Saunders v. State, 840 S.W.2d 390, 391 (Tex.Crim.App. 1992); see generally art.

37.09. Therefore, we will address only the second prong of the test to determine if the

appellant was entitled to the requested lesser-included offense instruction. See Hall,

225 S.W.3d at 535.


       In order for appellant to prevail, there must be more than a scintilla of evidence

that shows that appellant acted with criminal negligence in causing the death of

McKinney. That is to say, there must be more than a scintilla of evidence to show that

appellant was unaware of the risk his conduct created. See Mendieta v. State, 706

S.W.2d 651, 653 (Tex.Crim.App. 1986).             Appellant contends that his voluntary

statement to the police entitles him to a lesser-included offense instruction on criminally

negligent homicide because it shows: 1) appellant was so angry that he was unaware of

the risk of his conduct, 2) his initial shock at the severity of the result, and 3) upon return

to get the metal pipe, no further damage was done to McKinney. However, the record

further demonstrates that appellant went to McKinney’s residence for the express

purpose of giving McKinney some vigilante justice and, in so doing, appellant intended

to “kick his ass.”   Further, appellant stated in his statement that he knew he hurt

McKinney. The conclusion we reach is that appellant’s actual contention is that he did

not intend to cause the amount of damage or severity of injury to McKinney that he

caused.



                                              5
      This is the same argument the appellant made in Amis v. State, 87 S.W.3d 582,

586 (Tex.App.—San Antonio 2002, pet. ref’d), and the court rejected the contention that

Amis was entitled to an instruction on criminally negligent homicide because Amis

testified that he did not intend to cause the amount of harm to the victim. The court held

that such testimony did not show that Amis was unaware of the risk his conduct created.

Id. Similarly, in Gadsden v. State, 915 S.W.2d 620, 622-23 (Tex.App.—El Paso 1996,

no pet.), the court found, even if you could speculate that Gadsden did not intend the

result, that does not change his awareness of the risk involved with his conduct. We

agree with the reasoning of our sister courts that evidence that merely shows a person

did not intend the amount of harm does not necessarily make them unaware of the risk

of his or her conduct. See Amis, 87 S.W.3d at 586; Gadsden, 915 S.W.2d at 622-23.


      Our review of this entire record demonstrates that, at most, appellant may not

have intended the amount of harm that he caused McKinney. However, this does not

rise to more than a scintilla of evidence that he was unaware of the risk posed by

beating a person multiple times with a metal pipe. See Mendieta, 706 S.W.2d at 653.

Thus, the evidence at trial did not show that, if the appellant was guilty, he was only

guilty of the lesser-included offense of criminally negligent homicide. See Hall, 225

S.W.3d at 536. As such, appellant was not entitled to a jury charge instruction on

criminally negligent homicide and the trial court did not err in denying appellant’s

request for same. Accordingly, appellant’s single issue is overruled.




                                            6
                                       Conclusion


         Having overruled appellant’s single issue, we affirm the judgment of the trial

court.


                                                Mackey K. Hancock
                                                    Justice


Do not publish.




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