Opinion issued October 15, 2015




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-14-00536-CR
                          ———————————
                    DENNIS ROY REDDING, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                   On Appeal from the 212th District Court
                          Galveston County, Texas
                      Trial Court Case No. 12-CR-2363


                         MEMORANDUM OPINION

      Appellant Dennis Roy Redding was indicted for the first degree felony

offense of murder and was convicted of the lesser included offense of

manslaughter. Redding raises three issues on appeal. First, he contends that the

trial court erred by submitting a voluntary intoxication instruction pursuant to
Penal Code section 8.04(a) because he did not rely on voluntary intoxication as a

defense.      Second, he contends that the trial court erred by failing to include

Redding’s proposed application paragraph. Finally, Redding asserts that the trial

court erred in overruling his objections to the State’s comments during closing

argument in which the prosecutor allegedly told the jury that to be convicted of

murder, Redding merely had to intend to engage in conduct rather than intend a

result. Finding no error, we affirm.

                                    Background

      Redding and Mark Holcomb, the complainant, were longtime friends who

met when their daughters were in elementary school, then became closer when

Redding’s wife, Joan, went to work for Holcomb. On June 22, 2012, Redding and

his son-in-law, Darren Schieffer, joined Holcomb and his wife Francine at the

Holcombs’ waterfront home for the weekend. The Holcombs’ daughter Ashley,

Ashley’s husband Jonathan (John) Contois, and John’s brother Dan Contois were

also there.

      Holcomb and Redding began drinking sometime before 5:00 p.m. They

continued to drink outside while dinner was being prepared. The group, except

Redding, ate dinner around 8:00 p.m. After dinner, everyone gathered outside and

continued socializing and drinking. Holcomb and Redding remained as the rest of

the group gradually dispersed to go to bed.



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      Around 9:30 p.m., neighbors Gert Rhodes, David Baggs, and Jeff Dolen

joined Holcomb and Redding, and Francine came back downstairs. The group

continued to drink and socialize until sometime after midnight. Then, with the

help of Rhodes and Baggs, Holcomb assisted Redding upstairs to bed.

      Once upstairs, Holcomb stood in the doorway as Redding entered the

bedroom where Darren was already sleeping. Redding stumbled, falling into the

wall. He then pulled his bag out and began to rummage through it. Holcomb

turned on the light and asked Redding what he was looking for. Darren awakened

and sat up, and Redding yelled at Holcomb to “turn the fucking light off.”

Redding then walked toward the doorway pointing his handgun at Holcomb while

saying, “you mother fuckers are treating me like a baby.” As Redding approached

Holcomb, Redding fired the gun. Holcomb grabbed his stomach and fell to the

floor saying, “Dennis you shot me.”

      Darren ran to where John had been sleeping on the couch and told him that

Redding shot Holcomb. John ran into the bedroom to subdue Redding while

Darren called 911. Family members and guests then converged on the scene, and

Holcomb was holding his side and saying, “Call 911, he shot me”; “it was an

accident”; and “he didn’t mean to do it.” Darren and John restrained Redding and

found the gun in Redding’s left pocket. They overheard Redding saying, “Let me

up. It was an accident, let me up.” While awaiting EMS, Holcomb again told



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Francine “it was an accident.” Both the EMS and police arrived and Holcomb was

taken by life flight to the UTMB. Holcomb underwent surgery, but died from

blood loss early that morning.

       At trial, Darren testified that Redding told him that he never meant to kill

Holcomb, but that he was just trying to scare Holcomb by shining the gun’s laser

on him. Redding believed the laser was trigger-activated, but, in fact, the gun had

a button on the grip to activate the laser. Darren testified he is familiar with guns

and does not know of any gun that has a trigger-activated laser.

       Trial testimony also revealed that Redding was familiar with firearms.

Redding was a former Houston police officer and was previously the head of

security at NASA.     Redding also hunted regularly, was a concealed handgun

license holder, practiced shooting at a gun range, and typically carried a gun with

him.

       The jury charge during the guilt-innocence phase of trial included

instructions on murder and two lesser included offenses: manslaughter and deadly

conduct.    Over Redding’s objection, the trial court submitted the following

instruction on voluntary intoxication, which tracked Texas Penal Code § 8.04(a)

and (d):

       Voluntary intoxication does not constitute a defense to the
       commission of a crime.




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      Intoxication means disturbance of mental or physical capacity
      resulting from the introduction of any substance into the body.

The trial court also refused Redding’s proposed application paragraph which he

contended was needed to inform the jury that a finding of voluntary intoxication by

the defendant does not negate the State’s burden to prove all elements of the

offense.

      The jury convicted Redding of the lesser included offense of manslaughter,

found the deadly weapon special instruction true, and sentenced Redding to seven

years’ confinement in the Institutional Division of the Texas Department of

Criminal Justice.

                                   Jury Charge

      Redding argues that the trial court’s charge contained two errors. In his first

issue, he argues that the trial court erroneously instructed the jury on voluntary

intoxication. In his second issue, he argues that the trial court erred in failing to

include an application paragraph with the voluntary intoxication instruction. He

asserts that he preserved these errors, and they caused some harm, warranting

reversal.

A.    Standard of Review

      In analyzing a jury-charge issue, our first duty is to decide if error exists.

See Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh’g);

Tottenham v. State, 285 S.W.3d 19, 30 (Tex. App.—Houston [1st Dist.] 2009, pet.


                                         5
ref’d). Only if we find error do we then consider whether an objection to the

charge was made and analyze for harm. Tottenham, 285 S.W.3d at 30; see also

Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008) (“The failure to

preserve jury-charge error is not a bar to appellate review, but rather it establishes

the degree of harm necessary for reversal.”).

      “The degree of harm necessary for reversal depends upon whether the error

was preserved.” Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).

Error properly preserved by a timely objection to the charge will require reversal

“as long as the error is not harmless.” Almanza, 686 S.W.2d at 171. The Court of

Criminal Appeals has interpreted this to mean that any harm, regardless of degree,

is sufficient to require reversal. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim.

App. 1986). However, when the charging error is not preserved “and the accused

must claim that the error was ‘fundamental,’ he will obtain a reversal only if the

error is so egregious and created such harm that he ‘has not had a fair and impartial

trial’—in short ‘egregious harm.’” Almanza, 686 S.W.2d at 171.

B.    Applicable Law

      An instruction on voluntary intoxication informs the jury that the elements

of the offense—including the requisite mental state—are not affected or altered by

evidence of intoxication. Sakil v. State, 287 S.W.3d 23, 28 (Tex. Crim. App.

2009). The Court of Criminal Appeals has held that a voluntary intoxication



                                          6
instruction is appropriate if evidence from any source might lead a jury to conclude

that the defendant’s intoxication somehow excused his actions. Taylor v. State,

885 S.W.2d 154, 158 (Tex. Crim. App. 1994). The Court has expressly rejected

the argument that such an instruction relieves the State of its burden of proving

intent, Sakil, 287 S.W.3d at 28, noting that, if anything, the instruction acts to

reaffirm the mental state requirements, not delete them. Id.

C.    Analysis

      1.    Voluntary intoxication instruction

      In his first point of error, Redding asserts that the trial court erred by

instructing the jury on voluntary intoxication at the State’s request. Specifically,

Redding maintains that the instruction was not warranted because there was neither

evidence nor argument that his intoxication was not voluntary or that it caused or

excused his conduct.

      Under Almanza, our first duty is to determine whether there was error in the

charge. We conclude that there was not. In Taylor, the Court stated that a section

8.04(a) instruction is appropriate if evidence from any source might lead a jury to

conclude that the defendant’s intoxication somehow excused his actions. Taylor,

885 S.W.2d at 158; see also Fisher v. State, 397 S.W.3d 740, 746–47 (Tex. App.—

Houston [14th Dist.] 2013, pet. ref’d) (voluntary intoxication instruction

appropriate where equivocal testimony might have led jury to conclude that



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voluntary intoxication excused appellant’s actions).      The instruction may be

appropriate even if the defense does not argue that intoxication somehow excused

an accused’s conduct and even if evidence of intoxication is itself equivocal. Sakil,

287 S.W.3d at 27–28.

      In Sakil, the defendant elicited testimony from his own witness regarding

defendant’s history of drug abuse, and that history was suggested to have some

link to the appellant’s symptoms on the date of the offense. Id. at 27. Despite the

complainant telling emergency dispatchers the defendant was not intoxicated at the

time of the offense, the trial court concluded that testimony on defendant’s history

of drug use alone increased the possibility the jury would infer a cause-and-effect

relationship between defendant’s history of drug use and the offense conduct. Id.

The Court of Criminal Appeals explained that although the evidence did not

establish that the appellant was intoxicated at the time of the offense, there was

some evidence from which a juror could conclude that voluntary intoxication

excused appellant’s actions. Id. Thus, a voluntary intoxication instruction was

appropriate as it “properly utilized the charge’s function to actively prevent

confusion.” Id. at 28.

      This case is similar. Here, there was considerable evidence of Redding’s

intoxication. Francine testified that Redding and Holcomb had a longstanding

history of drinking heavily together while on vacation. John described Redding as



                                         8
“pretty drunk” at dinnertime, around 8:00 p.m., and Francine testified that Redding

continued to drink downstairs for a few hours and was very intoxicated. Darren

recalled that appellant was “drunk … stumbling everywhere” when appellant came

upstairs right before the shooting.       The uncontroverted testimony provided

evidence from which a juror could conclude that intoxication excused Redding’s

actions.   Accordingly, the trial court did not err in including a voluntary

intoxication instruction.    Taylor, 885 S.W.2d at 158 (voluntary intoxication

instruction appropriate where evidence from any source might lead jury to

conclude that defendant’s intoxication somehow excused his actions even if

defendant has not explicitly argued intoxication as a defense); Sakil, 287 S.W.3d at

26–28 (voluntary intoxication instruction appropriate even if evidence of

intoxication is equivocal in order to actively prevent confusion).

      We overrule appellant’s first issue.

      2.        Omission of application paragraph

      In his second point of error, Redding contends that the trial court erred in

refusing an application paragraph regarding voluntary intoxication. Specifically,

Redding argues that the voluntary intoxication instruction could have misled the

jury into thinking that Redding was strictly liable if the jury found voluntary

intoxication.

      Redding asked the trial court to include the following application paragraph:



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             Evidence of the defendant’s intoxication, if any, does not
             negate the elements of intent or knowledge or recklessly or the
             State’s burden to prove the defendant’s intent, knowledge or
             recklessness as those terms has [sic] been defined beyond a
             reasonable doubt.

      We conclude that the trial court did not err in refusing to submit the

proposed application paragraph. We read Sakil and other authorities to mean that a

trial court does not err in failing to submit an application paragraph with a

voluntary intoxication instruction. See, e.g., Taylor, 885 S.W.2d at 158 (abstract

voluntary intoxication instruction without a related application instruction not

noted as error where charge indicated burden of production remained with the

State); Sakil, 287 S.W.3d at 28 (concluding that abstract voluntary intoxication

instruction “operates to inform the jury that the elements of the offense, including

the requisite mental state, are not affected by any evidence of intoxication” (citing

Hawkins v. State, 605 S.W.2d 586, 589 (Tex. Crim. App. 1980))); Hughes v. State,

No. 01-11-00282-CR, 2012 WL 2923180, *4 (Tex. App.—Houston [1st Dist.] July

12, 2012, pet. ref’d) (mem. op., not designated for publication) (abstract voluntary

intoxication instruction without a related application instruction operated to

prevent juror confusion and was not noted as error). “If anything, a voluntary-

intoxication instruction acts to reaffirm the mental-state requirements, not delete

them. . . . [T]he instruction operates to inform the jury that the elements of the

offense, including the requisite mental state, are not affected by any evidence of



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intoxication.” Sakil, 287 S.W.3d at 28 (citing Hawkins, 605 S.W.2d at 589); see

also Raby v. State, 970 S.W.2d 1, 5 (Tex. Crim. App. 1998) (concluding that a

section 8.04(a) instruction suffers no constitutional infirmity and does not

improperly benefit the State by shifting the burden on the requisite element of

criminal intent).

      Here, the charge instructed the jury that the State maintained its burden of

proving the required mental state beyond a reasonable doubt.         The general

instructions stated: “[a]ll persons are presumed to be innocent and no person may

be convicted of an offense unless each element of the offense is proved beyond a

reasonable doubt.” The next paragraph reinforced the idea that the State bore the

burden of production on each and every element: “[t]he prosecution has the burden

of proving the Defendant guilty and it must do so by proving each and every

element of the offense charged beyond a reasonable doubt and if it fails to do so,

you must acquit the Defendant.” Thus, the charge included the substance of the

proposed application paragraph that Redding argues should have been submitted,

albeit not immediately after the voluntary intoxication instruction as Redding

wished. See Comm. on Pattern Jury Charges, State Bar of Tex., Texas Criminal

Pattern Jury Charges: Defenses § B6.3 (2013) (suggesting voluntary intoxication

instruction tracking Penal Code section 8.04(a) be accompanied by an instruction




                                       11
that “you are reminded that the state must prove all elements of the offense beyond

a reasonable doubt.”).

      We conclude that the charge adequately informed the jury that the State

retained the burden to prove all elements beyond a reasonable doubt. Accordingly,

the trial court did not abuse its discretion in refusing Redding’s proposed

application paragraph.

      We overrule appellant’s second issue.

                               Closing Arguments

      In his third issue, Redding argues that the trial court erred in overruling his

objections to the State’s closing arguments, which he maintains incorrectly led the

jury to believe that murder was a nature of conduct rather than result of conduct

offense.

A. Standard of Review

      A trial court’s ruling on an objection to improper jury argument is reviewed

for abuse of discretion. Rodriguez v. State, 446 S.W.3d 520, 536 (Tex. App.—San

Antonio 2014, no pet.). Prosecutorial misstatements of law are improper, but they

are not constitutional in nature, and are governed by the harm analysis set out in

Texas Rule of Appellate Procedure 44.2(b). Mosley v. State, 983 S.W.2d 249, 259

(Tex. Crim. App. 1998).        Nonconstitutional errors are disregarded unless

appellant’s substantial rights are affected. Herrera v. State, 11 S.W.3d 412, 415



                                         12
(Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). A substantial right is affected

when error has a substantial and injurious effect or influence on the jury’s verdict.

King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).

      To determine whether the prosecutor’s misstatement of the law in closing

argument to the jury had a substantial and injurious effect, a reviewing court must

look at all the evidence and the court’s charge. Herrera, 11 S.W.3d at 415. The

court does not consider only isolated statements when reviewing for error.

Rodriguez v. State, 90 S.W.3d 340, 364 (Tex. App.—El Paso 2001, pet. ref’d).

B. Applicable Law

      To be permissible, the State’s jury argument must fall within one of the

following four general areas: (1) summation of the evidence; (2) reasonable

deduction from the evidence; (3) answer to argument of opposing counsel; or

(4) plea for law enforcement. Davis v. State, 329 S.W.3d 798, 821 (Tex. Crim.

App. 2010). When an argument exceeds the permissible bounds, it does not

constitute reversible error unless, in light of the record as a whole, the argument is

extreme or manifestly improper, violative of a mandatory statue, or injects new

facts harmful to the accused into the trial proceeding. Todd v. State, 598 S.W.2d

286, 296–97 (Tex. Crim. App. [Panel Op.] 1980) (first citing Kerns v. State, 550

S.W.2d 91 (Tex. Crim. App. 1977); then citing Thompson v. State, 480 S.W.2d 624

(Tex. Crim. App. 1972)).



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C. Analysis

      Redding contends that portions of the State’s closing argument misstated the

law by improperly directing the jury to focus on Redding’s “acts” on the night of

the shooting. In particular, during closing argument, the prosecutor told the jury:

              The issue for you, ladies and gentlemen, is has the State proven
              murder? Has the State proved intentionally or knowingly acts?
              What I want you to focus on are the acts.

Redding objected, “That’s a misstatement of the law.            It’s intentionally or

knowingly cause the result, not that he engaged in conduct.” The trial court

overruled Redding’s objection.

      The prosecutor continued, later arguing:

              When you focus on the actions of the defendant in this case
              from walking up to that bedroom, rummaging around in the
              bag, taking the gun out of the holster, his gun, the gun he’s
              familiar with, the retired police officer with the CHL, his gun
              and he pulls the trigger after taking several steps forward, those
              are all, ladies and gentlemen, intentional, knowing, those are
              purposeful actions.

Redding objected:

              Your Honor, I object. The jury charge says the conduct that
              caused the result, not that he engaged in conduct. That’s not
              part of the intentional and knowing. It’s a misstatement of the
              law that applies to this case by saying if you find he engaged in
              conduct. That’s not the law.

The trial court again overruled the objection.

      Even assuming the arguments complained of were improper and that the trial

court erred in overruling the objections, we find no substantial or injurious effect

                                          14
or influence. TEX. R. APP. P. 44.2(b). Determining harm under the standard for

nonconstitutional error in improper argument cases requires balancing the

following three factors: (1) severity of the misconduct (prejudicial effect);

(2) curative measures (the efficacy of any cautionary instruction by the judge); and

(3) the certainty of the conviction absent the misconduct (the strength of the

evidence supporting the conviction). Mosley, 983 S.W.2d at 259 (first citing

United States v. Millar, 79 F.3d 338, 343 (2nd Cir. 1996); then citing United States

v. Palmer, 37 F.3d 1080, 1085 (5th Cir. 1994)).

      First, considering the severity of the misconduct, we conclude that the

State’s comments were not manifestly improper. Consideration of the State’s

entire closing argument shows that the State was properly asking the jury to

evaluate Redding’s intent by focusing on his actions that night. Notwithstanding

the fact that murder is a result of conduct offense, a fact finder may infer that a

particular result was intended based on a defendant’s acts. See Brown v. State, 122

S.W.3d 794, 800 (Tex. Crim. App. 2003) (explaining that while intent to kill

cannot be inferred as a matter of law, a jury may infer intent based on any facts in

evidence which it determines prove the existence of an intent to kill); Ex parte

Weinstein, 421 S.W.3d 656, 668 (Tex. Crim. App. 2014) (explaining that intent to

commit murder may be inferred from circumstantial evidence, including the

accused’s acts and words); Holiday v. State, 14 S.W.3d 784, 789–90 (Tex. App.—



                                        15
Houston [1st Dist.] 2000, pet. ref’d) (factfinder may infer intent to kill from the use

of a deadly weapon). The arguments did not invite speculation, Thompson v. State,

89 S.W.3d 843, 850–51 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d)

(argument inviting speculation clearly improper and amounted to constitutional

error), did not inject new facts into the record, Everett v. State, 707 S.W.2d 638,

641 (Tex. Crim. App. 1986) (prosecutor may not use closing argument to place

matters outside the record before the jury), and did not cast aspersion on defense

counsel’s veracity, Cole v. State, 194 S.W.3d 538, 544 (Tex. App.—Houston [1st

Dist.] 2006, pet. ref’d) (comments impugning defense counsel’s veracity in closing

arguments may constitute reversible error). Instead, the arguments complained of

permissibly encouraged reasonable deductions from the evidence. Additionally,

the jury concluded that Redding did not intentionally or knowingly cause

Holcomb’s death. Instead, the jury found Redding guilty of the lesser-included

offense of manslaughter, requiring only recklessness. In light of the verdict, we

conclude that any misstatement in closing arguments did not improperly cause the

jury to infer an intent to kill.

       Second, the trial court gave no oral curative instruction, but the charge

correctly stated the law regarding the mens rea applicable to each offense

submitted. Third, absent jury nullification, conviction on the manslaughter charge

was almost certain, because the uncontroverted evidence showed that Redding



                                          16
pointed a firearm at Holcomb and the charge instructed the jury to presume

recklessness if Redding knowingly did so. Additionally, a seven year sentence is

at the lower end of the range of punishment the jury considered. In short, although

there was no curative instruction, the benign nature of the objected to statements,

together with the strength of the State’s manslaughter case, lead us to conclude that

any error in overruling Redding’s objections to the State’s closing argument does

not warrant reversal. Mosley, 983 S.W.2d at 259–60; see also Schultze v. State,

177 S.W.3d 26, 44–50 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (though

prosecutor’s argument improperly invoked matters outside record and no curative

measures were taken, there was no harm given relatively minimal degree of

misconduct and certainty of conviction).

      We overrule appellant’s third issue.

                                       Conclusion

      We affirm the trial court’s judgment.



                                                Rebeca Huddle
                                                Justice

Panel consists of Chief Justice Radack, Justice Bland, and Justice Huddle.

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




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