                            NUMBER 13-11-00464-CR

                            COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

HOWARD LEE SHAFER JR.,                                                     Appellant,


                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                    On appeal from the 66th District Court
                               of Hill County, Texas.


                         MEMORANDUM OPINION
                 Before Justices Rodriguez, Garza, and Vela
                  Memorandum Opinion by Justice Garza
      Appellant, Howard Lee Shafer Jr., was convicted of murder, see TEX. PENAL

CODE ANN. § 19.02 (West 2011), and was sentenced to life imprisonment. By three

issues on appeal, Shafer contends that the trial court erred by (1) admitting evidence of

extraneous bad acts, and (2) denying his request to instruct the jury on the lesser-
included offense of criminally negligent homicide. We affirm.

                                          I. BACKGROUND

        On the evening of November 6, 2009, Hill County Sheriff’s Office deputies were

dispatched to a county road near Hillsboro, Texas, to investigate a call regarding an

unresponsive female. At the scene, officers met Mike Smith and his friend, Lizabeth

Wallace. Smith directed the officers to the unresponsive female, who was wearing a

purple shirt, and he identified the woman as Kathy Todd,1 his ex-girlfriend. Todd was

lying on the ground outside a large shed about thirty feet away from Smith’s house. It

was apparent to the officers that Todd was deceased, because she appeared to have

suffered severe trauma to the back of her head, there was a large puddle of blood under

her body, and there was blood spatter and apparent pieces of brain matter and skull

scattered around the scene. Police recovered several items from the scene, including

three pistols and two rifles from a black pickup truck that was parked nearby.

        Travis Smith, Mike Smith’s father, testified that Todd visited him in his house on

November 6, 2009. The two talked over coffee. When Todd left, she told Travis that

she was going to Mike’s house, which was around three miles away. Over objection by

defense counsel, Travis testified that he had been the victim of a burglary at his house

the previous month, and that several firearms and food items were stolen from his

house.

        Mike Smith testified that, on November 5, “[s]omeone broke into [his] home” and

“shot up the front door of a storage shed.” Smith was not at his home at the time; when

he returned, he noticed that someone had broken in but he did not notice anything


        1
        Both appellate briefs use “Kathy Crawford” as the victim’s name. The record reflects that “Kathy
Todd Crawford” was the name used in the indictment and that both parties used “Kathy Todd” at trial.

                                                   2
missing from his house. Police noted that there were several bullet holes in the front

door of Smith’s house, and that the size of the holes was consistent with the firearms

that had been stolen from Smith’s father’s house.

       Smith said that he and Todd had lived together for about a year; Todd moved out

approximately two months before she was killed. Smith testified that the storage shed

which had been shot at on November 5 belonged to Todd. He stated that he informed

Todd about the fact that someone had shot at her shed, and that Todd planned to come

to the shed the next day, November 6, to retrieve some of her belongings.

       Smith testified that, on the day of November 6, he drove Wallace to Waco for a

doctor’s appointment. He left around 9:30 a.m., picked Wallace up at around 10:00

a.m., and drove to Waco. Smith testified that Todd called him at around 1:30 p.m.,

while he and Wallace were still in Waco, and told him that she was going to start loading

up items she wanted to take back with her. According to Smith, Todd called him again

at around 3:00 p.m. and said that after she was finished loading the items, she was

going to go to Travis’s house to have coffee. After patronizing a pool hall and a mall,

Smith and Wallace left Waco at around 3:30 p.m. They stopped at Wallace’s mother’s

house and a Wal-Mart, and finally returned to Smith’s house at around 7:30 p.m. Smith

provided receipts from his various purchases that day to police, and they were entered

into evidence at trial.

       When Smith returned home on the evening of November 6, he noticed that

Todd’s son’s truck was in his driveway. When he went over to the shed to see if Todd

was still there, he saw Todd’s body at the foot of a small staircase in front of the shed.

Smith initially thought that Todd had accidentally fallen down the stairs. He called 911.



                                            3
Soon afterward, he realized Todd was dead.              He went to the sheriff’s office for

questioning; at that time, one of the officers pointed out to Smith that he had apparent

blood stains on his pants and boots. He believed the stains were made when he was

kneeling down next to Todd’s body in an attempt to see if she was breathing.

         Smith testified that, the following day, he saw one of his rifles in a police car. The

rifle was a .270-caliber Winchester, had a scope attached to it, and was covered in a

“real thick grease” which had not been there when he last saw it. According to Smith,

he had last used the rifle “a number of months” before Todd was killed. Up until that

point, he did not realize that the rifle was missing.

         Smith stated that, in 2009, he hired Tim Sulak, a local farmer, to harvest the

wheat crop on his property. Sulak came to do the job with his equipment and a “harvest

crew.” Appellant, Howard Shafer, was one of the members of Sulak’s crew.

         Sulak had also done farm work in the past for Patricia Dumas, who lives nearby

Smith.     Dumas testified that she noticed something unusual on her property on

November 7, 2009. There was food missing from a freezer that she kept on her porch,

the gate to her barn was open, there was a jacket hanging on the gate, and there were

“two couch cushions laying in the trough in the barn.” She notified the police that she

suspected someone might be living in her barn.

         Deputy Hunter Barnes responded to Dumas’s call. He recognized that Dumas’s

property was nearby the location of the previous day’s homicide and called for

additional units to assist him. The officers surrounded, then entered the barn. Deputy

Barnes announced his presence and authority “several times,” but no one responded.

The officers searched the barn and eventually discovered Shafer hiding behind a stable



                                               4
door. Deputy Barnes ordered Shafer to show his hands; Shafer did not comply, so the

officers forced him to the ground, placed him in handcuffs, and took him into custody.

Deputy Barnes acknowledged that he and the other officers knew, prior to entering the

barn, that Shafer had an outstanding warrant for the burglary of Travis Smith’s home,

and that they wanted to question Shafer about the previous day’s homicide.

       In their search of the barn, police recovered lighters, cigarettes, a camouflage

jacket, some of the food that was missing from Dumas’s freezer, a thermos with Todd’s

name on it, boxes of ammunition, and several firearms. One of the firearms was a

loaded high-caliber rifle with a scope, that appeared to be covered in oil. Crime scene

technician Joyce Marek testified that she tested several of the items recovered from the

barn for fingerprints. She found fingerprints on some of the items, but they were partial

prints, and “there was not enough ridge detail on any one print for positive

identification.” Marek noted that one of the items, the scoped rifle, had oil present on it,

“which is not conducive for prints.” Forensic scientist Brent Watson testified that the

only DNA found on Shafer’s clothes, which were recovered at the time he was arrested,

belonged to Shafer.

       At the sheriff’s office, Shafer spoke to officers and led them to believe that he had

information regarding Todd’s homicide. Shafer then signed a form advising him of his

Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 444 (1966). He next gave a

handwritten statement, which the prosecutor read aloud to the jury.           Prior to the

prosecutor’s reading of the statement, the trial court instructed the jury that evidence

concerning any offense other than the indicted offense—i.e., the murder of Kathy

Todd—may be considered only if the jury finds beyond a reasonable doubt that Shafer



                                             5
committed the extraneous offense and even then, only to determine motive, opportunity,

plan, knowledge, identity, or absence of mistake with respect to the indicted offense.

See TEX. R. EVID. 404(b). Shafer’s statement was as follows:

       Thurs[day] I went to Mike Smith[’s] house and used a T post driver to
       [k]nock the door in and then went threw [sic] house looking for food and
       found a 270 win. and left with gun went back to barn wear [sic] I was
       staying[.]

       I went back to Mike Smith[’s] pasture across the creek from his house and
       was shooting the 270 win at his Tank and well shed and at the other
       building which was yellow with green trim to see if the gun was sited in
       [sic] threw out [sic] the day. Then around dusk I shot at the yellow building
       with green trim and as I pulled the trigger I seen a purple object ap[p]ear.
       Then at dark I went back across the creek and up to Mike Smith[’s] house
       from the front side and then seen [sic] a black truck in drive way so I went
       back down by the creek and came up the back side of his place and when
       I got to the gap I saw a person laying in front of the yellow building with
       green trim and had on a purple shirt. I went through the gap and around
       to side of house where black truck was and opened door got a .25 pistol 2
       lighters and pack of cig. Doral and then left went back to barn.

A video recording of the police interview with Shafer was played for the jury. In the

interview, Shafer stated that he did not realize the woman with the purple shirt was

there at the time he shot at the shed.

       Two days later, Shafer led officers to the crime scene. He showed officers where

he was sitting and upon which tree he had propped the rifle to take a shot. The location

was approximately 138 yards away and slightly downhill from where Todd was found.

At trial, the jury was given the opportunity to view an object 138 yards away through the

scope that was attached to the rifle found with Shafer in Dumas’s barn.

       Forensic examinations showed that the projectiles recovered at the scene of

Todd’s death could not be confirmed, nor could they be eliminated, as having been shot

from the rifle found in Dumas’s barn.      However, the type of ammunition used was



                                            6
consistent with that rifle.        An examination by a forensic anthropologist of Todd’s

cranium, including the pieces of skull found at the crime scene, showed a partial

entrance wound slightly to the right of the top of the skull, a near perpendicular entry of

the projectile, and an exit wound on the left side of the back of the skull.

        Diana Blankenship, a friend of Todd, was called to the witness stand by the

defense. She testified that she knew Todd had been in a romantic relationship with

Mike Smith, and she thought that Smith may have owed Todd money. Defense counsel

asked whether Todd “express[ed] reservation about anything that [Mike Smith] was

doing as far as cheating on her . . . with another woman?” Blankenship replied “Yes.”

        The trial court’s charge instructed the jury on the indicted offense of murder as

well as the lesser-included offense of manslaughter. See TEX. PENAL CODE ANN. §

19.04 (West 2011). The trial court denied defense counsel’s request to instruct the jury

on the offense of criminally negligent homicide. See id. § 19.05 (West 2011). The jury

found Shafer guilty of murder and sentenced him to life imprisonment. This appeal

followed.2

                                            II. DISCUSSION

A.      Evidence of Extraneous Bad Acts

        By his first issue,3 Shafer contends that the trial court erred, under Texas Rules

of Evidence 403 and 404(b), by admitting evidence of extraneous bad acts. Shafer’s


        2
          This appeal was transferred from the Tenth Court of Appeals pursuant to a docket equalization
order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West 2005).
        3
         In Shafer’s appellate brief, the argument as to his first issue begins as follows: “The Court
should begin their analysis by addressing the question of legal sufficiency.” The brief then sets forth the
standard of review applicable to a legal sufficiency challenge. However, the brief does not contain any
argument actually employing that standard of review, or in any other way addressing the sufficiency of the
evidence supporting the conviction. See TEX. R. APP. P. 38.1(i) (“The brief must contain a clear and
concise argument for the contentions made . . . .”). Moreover, neither the table of contents or the list of

                                                    7
appellate brief does not state specifically what evidence he is claiming should not have

been admitted. However, as part of his argument on appeal, he recites the entirety of

the prosecutor’s opening statement, and he emphasizes the portions of that statement

that refer to the outstanding warrant for Shafer’s arrest relating to the burglary of Travis

Smith’s home. Therefore, we construe Shafer’s first issue as challenging the admission

of evidence relating to that burglary.

        Rule 404(b) states that “[e]vidence of other crimes, wrongs or acts is not

admissible to prove the character of a person in order to show action in conformity

therewith.” TEX. R. EVID. 404(b). “It may, however, be admissible for other purposes,

such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident . . . .”             Id.   We review a trial court’s ruling on the

admissibility of extraneous offense evidence under an abuse of discretion standard.

Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011); Prible v. State, 175

S.W.3d 724, 731 (Tex. Crim. App. 2005). As long as the trial court's ruling is within the

“zone of reasonable disagreement,” there is no abuse of discretion, and the trial court’s

ruling will be upheld. Devoe, 354 S.W.3d at 469; Prible, 175 S.W.3d at 731. “A trial

court’s 404(b) ruling admitting evidence is generally within this zone if there is evidence

supporting that an extraneous transaction is relevant to a material, non-propensity

issue.” Devoe, 354 S.W.3d at 469 (citing Powell v. State, 63 S.W.3d 435, 438 (Tex.

Crim. App. 2001)).



issues presented states that evidentiary sufficiency is an issue in this appeal. See TEX. R. APP. P. 38.1(b)
(“The table of contents must indicate the subject matter of each issue or point, or group of issues or
points.”), 38.1(f) (“The brief must state concisely all issues or points presented for review.”). Accordingly,
the issue of the legal sufficiency of the evidence supporting Shafer’s conviction is not properly before this
Court.


                                                      8
       Here, the evidence adduced at trial regarding the burglary of Travis Smith’s

home included Travis Smith’s testimony that his home was burglarized in October 2009;

police testimony that the bullet holes on Mike Smith’s door were consistent with the

firearms that were stolen from Travis Smith’s house; and Deputy Barnes’s statement

that he and other officers knew that Shafer had an outstanding warrant for that burglary

at the time they apprehended him.

       Under Rule 404(b), evidence of another crime, wrong, or act may be admissible

as “same-transaction contextual evidence” where “several crimes are intermixed, or

blended with one another, or connected so that they form an indivisible criminal

transaction, and full proof by testimony . . . any one of them cannot be given without

showing the others.” Id. Same-transaction contextual evidence is admissible only when

the offense would make little or no sense without also bringing in that evidence, and it is

admissible “only to the extent that it is necessary to the jury’s understanding of the

offense.” Id. Here, Shafer was alleged to have stolen a firearm from Travis Smith’s

home and then used that firearm to shoot at Mike Smith’s property. The burglary and

shooting could therefore be seen as “an indivisible criminal transaction.”          See id.

Moreover, evidence of the burglary helped to establish how Shafer came into

possession of the weapon that was later recovered from the barn in which he was

staying and which, the State posited, caused Todd’s death. Accordingly, the State’s

case would have been rendered incomplete if it was unable to present this evidence.

See id. at 470 (finding trial court did not abuse its discretion in admitting extraneous act

evidence where “it would be impossible to [suppress the evidence] without leaving

a . . . gaping hole in the State’s case”).



                                             9
        Even if we were to assume that the evidence was not admissible as “same-

transaction contextual evidence,” evidence of the burglary was nevertheless relevant for

purposes beyond showing character conformity.                    The evidence was relevant in

establishing Shafer’s identity as Todd’s shooter, as well as to show Shafer’s opportunity

to commit the crime and his preparation and plan to commit the crime. The evidence

was therefore admissible under Rule 404(b).

        Shafer further contends that the trial court erred in admitting the evidence under

rule 403. See TEX. R. EVID. 403 (“Although relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice, confusion

of the issues, or misleading the jury, or by considerations of undue delay, or needless

presentation of cumulative evidence.”).4 We disagree. Shafer does not explain how

evidence of the burglary of Travis Smith’s home unfairly prejudiced him or confused the

issues. Even assuming that this evidence unfairly prejudiced Shafer, we note that the

trial court gave a prompt and comprehensive limiting instruction directing the jury to

disregard the evidence unless it found beyond a reasonable doubt that Shafer

committed the burglary and then only for the purposes set forth in Rule 404(b). We do

not believe the trial court erred in determining that the probative value of this evidence

was not substantially outweighed by any prejudicial effects.

        Shafer’s first issue is overruled.

B.      Criminally Negligent Homicide

        By his second issue, Shafer argues the trial court erred in denying his request to

charge the jury on the lesser-included offense of criminally negligent homicide.

        4
           The State argues that Shafer waived his Rule 403 issue because he failed to raise it at trial.
Our review of the record indicates that defense counsel objected “under 401, 403, and 404(b) grounds.”
The trial court overruled the objection. Accordingly, the issue is preserved for our review.

                                                   10
       Courts use a two-pronged test to determine whether a defendant is entitled to an

instruction on a lesser-included offense. See Guzman v. State, 188 S.W.3d 185, 188

(Tex. Crim. App. 2006); Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005).

The first step is to determine whether the offense for which an instruction is requested

is, in fact, a lesser-included offense of the alleged offense. Hall v. State, 225 S.W.3d

524, 535 (Tex. Crim. App. 2007); Salinas, 163 S.W.3d at 741. This determination is a

question of law and does not depend on the evidence to be produced at the trial. Hall,

225 S.W.3d at 535. Here, it is undisputed that criminally negligent homicide is a lesser-

included offense of murder. See Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim.

App. 1992).

       The second step is to determine if there was some evidence adduced at trial that

would permit a rational jury to find that the defendant is guilty of the lesser offense, but

not guilty of the greater. Hall, 225 S.W.3d at 536; Salinas, 163 S.W.3d at 741; Feldman

v. State, 71 S.W.3d 738, 750 (Tex. Crim. App. 2002). Anything more than a scintilla of

evidence may be sufficient to entitle a defendant to a charge on the lesser offense.

Hall, 225 S.W.3d at 536. An instruction on the lesser offense must be given if the

evidence—“whether produced by the State or the defendant and whether it be strong,

weak, unimpeached, or contradicted”—raises the issue of the lesser offense. Rousseau

v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993); Bell v. State, 693 S.W.2d 434,

442 (Tex. Crim. App. 1985). However, “it is not enough that the jury may disbelieve

crucial evidence pertaining to the greater offense, but rather, there must be some

evidence directly germane to the lesser-included offense for the finder of fact to




                                            11
consider before an instruction on a lesser-included offense is warranted.” Hampton v.

State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003).

       A person is guilty of criminally negligent homicide if he causes the death of

another by criminal negligence.      TEX. PENAL CODE ANN. § 19.05(a).        A person is

criminally negligent when he ought to be aware of a substantial and unjustifiable risk

that the circumstances surrounding his conduct exist or the result will occur. Id. §

6.03(d) (West 2003).

       The only evidence that Shafer points to on appeal with regard to this issue is the

voluntary written statement he made to police on November 7, 2009. According to

Shafer, “[t]he voluntary statement speaks for itself and clearly shows no intentional

action” on his part. This argument fails for two reasons. First, even if we were to

assume that the statement “clearly shows no intentional action,” that would not have

necessarily mandated an instruction on criminally negligent homicide. Instead, in order

for a charge on criminally negligent homicide to be required, the record must contain

evidence showing the defendant’s unawareness of a substantial and unjustifiable risk

that the result will occur. Mendieta v. State, 706 S.W.2d 651, 652 (Tex. Crim. App.

1986). Nothing in Shafer’s written statement indicates that he was unaware of the risk

of firing a high-powered rifle at an occupied building.

       Second, if the jury believed that Shafer acted unintentionally, it could have found

him guilty of manslaughter. See TEX. PENAL CODE ANN. § 19.04(a) (“A person commits

an offense if he recklessly causes the death of an individual.”). In Masterson v. State,

the Texas Court of Criminal Appeals found the omission of a criminally negligent

homicide charge to be harmless because the jury was instructed on the lesser-included



                                             12
offense of manslaughter and yet chose to convict the defendant for murder.             155

S.W.3d 167, 171 (Tex. Crim. App. 2005). The Court noted:

       [T]he jury’s failure to find an intervening lesser-included offense (one that
       is between the requested lesser offense and the offense charged) may, in
       appropriate circumstances, render a failure to submit the requested lesser
       offense harmless. This is so because the harm from denying a lesser
       offense instruction stems from the potential to place the jury in the
       dilemma of convicting for a greater offense in which the jury has
       reasonable doubt or releasing entirely from criminal liability a person the
       jury is convinced is a wrongdoer. The intervening lesser offense is an
       available compromise, giving the jury the ability to hold the wrongdoer
       accountable without having to find him guilty of the charged (greater)
       offense. While the existence of an instruction regarding an intervening
       lesser offense (such as manslaughter interposed between murder and
       criminally negligent homicide) does not automatically foreclose harm—
       because in some circ[u]mstances that intervening lesser offense may be
       the least plausible theory under the evidence—a court can conclude that
       the intervening offense instruction renders the error harmless if the jury’s
       rejection of that offense indicates that the jury legitimately believed that
       the defendant was guilty of the greater, charged offense.

Id. (citing Saunders v. State, 913 S.W.2d 564, 572 (Tex. Crim. App. 1995)).

       This case is analogous. Manslaughter was not “the least plausible theory under

the evidence” in this case because the jury could have inferred from the evidence that

Shafer was aware of the risk he was taking by shooting at Todd’s shed. See id. (citing

Saunders, 913 S.W.2d at 565) (noting that the “basic difference” between manslaughter

and criminally negligent homicide is that “in the former, that actor recognizes the risk of

death and consciously disregards it, while in the latter he is not, but ought to be, aware

of the risk that death will result from his conduct”). The jury’s conviction of Shafer for

murder, despite the availability of manslaughter, indicated that the jury did in fact

believe that Shafer harbored the specific intent required for murder.             See id.

Accordingly, any error by the trial court in declining to charge the jury on criminally

negligent homicide was harmless. See id.; see also TEX. R. APP. P. 44.2(b).

                                            13
      We overrule Shafer’s second issue.

                                    III. CONCLUSION

      The judgment of the trial court is affirmed.



                                                 _________________________
                                                 DORI CONTRERAS GARZA
                                                 Justice

Do not publish.
TEX. R. APP. P. 47.2(b)

Delivered and filed the
25th day of October, 2012.




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