A defendant is entitled to a lesser included offense instruction if (1) proof of the charged offense includes the proof required to establish the lesser included 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 of the lesser included offense.

Christian Rafael Trujillo (“Appellant”) was charged with murder. A jury found Appellant guilty of the lesser included offense of manslaughter, and assessed punishment at 17 years in prison. Appellant appealed, claiming the trial court erred in refusing to provide a jury instruction on the lesser included offense of criminally negligent homicide.

An offense is a “lesser included offense” if “it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission.” Tex.Code Crim. Proc. Art 37.09(3). A person is criminally negligent when he is aware of but disregards a substantial and unjustifiable risk that the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint. Tex.Penal Code §6.03(d). Although the proof required to establish murder included the proof required to establish criminally negligent homicide, Appellant did not present evidence to show that he failed to perceive the risk created by his conduct. Ferrel v. State, 55 S.W.3d 586, 589 (Tex.Crim.App. 2001). The Court held that the trial court did not err in failing to give an instruction on criminally negligent homicide.

Christian Rafael Trujillo v. The State of Texas
Court of Appeals for the First District of Texas
On Appeal from the 176th District Court, Harris County
Cause No. 964659

2. Defendant must object to court reporter’s failure to transcribe bench conferences in order to preserve issue for appeal.

Aundri Lewis (Appellant) was found guilty of aggravated assault. The jury assessed punishment at 45 years in prison. Appellant appealed, claiming he was entitled to a new trial because the court reporter failed to transcribe bench conferences.

The official court reporter must, unless excused by agreement of the parties, attend court sessions and make a full record of the proceedings. Tex.R.App.P. 13.1(a). However, appellant who claims error based on a failure to record court proceedings must establish, at a minimum, that a record was requested. Tex.Gov’t.CodeAnn. §52.046. Rule 13.1(a) conflicts with and must yield to §52.046. Polasek v. State, 16 S.W.3d 82, 88-89 (Tex.App. –Houston [1st Dist.] 2000, pet. ref’d). Thus, to preserve error, defendant must object to court reporter’s failure to record proceedings.

The Court held that Appellant failed to timely object to reporter’s failure to record bench conferences; thus Appellant did not preserve the alleged error for appeal.

Aundri Lewis v. The State of Texas
Court of Appeals for the First District of Texas
On Appeal from the 230th District Court of Harris County.
Cause No. 1024294

3. Fire is a thing which, in the manner of its use or intended use, is capable of causing death or serious bodily injury and is, therefore, a “Deadly Weapon” under Texas Penal Code

Seleta Yotarsha Chambers (“Appellant”) pled guilty to recklessly causing serious bodily injury to a child and first degree arson. The jury assessed punishment at 12 years for the first charge and 10 years for the second, probated for 10 years. Appellant appealed, claiming the trial court erroneously included an affirmative deadly weapon finding in each judgment. Appellant’s claim was based on the assertion that fire cannot be considered a “deadly weapon.”

A deadly weapon is a “firearm or anything manifestly designed, made, or adopted for the purpose of inflicting death or serious bodily injury” or “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Tex.Penal Code §1.07(17)(A), (B). Although fire is not a physical object in the same sense as a gun or knife, it is not intangible either, but rather manifests itself through the tangible aspects of combustion- namely, light, flame, and heat. Taylor v. State, 735 S.W.2d 930, 948 (Tex.App.-Dallas 1987). The Court concluded that fire is a thing which, in the manner of its use or intended use, is capable of causing death or serious bodily injury and is, therefore, a “Deadly Weapon” under Texas Penal Code.

The Court then determined the Appellant’s manner of using fire, utilizing aeresol cans to purposefully set the couch in her apartment on fire, was capable of causing serious bodily injury and death.

Seleta Yotarsha Chambers v. The State of Texas
Court of Appeals for the First District of Texas
On Appeal from the 405th District Court of Galveston County.
Cause No. 03CR3895

Relevance?

“Objection, your honor, relevance.” This is an oft-used objection heard often in courtrooms and in Hollywood. Today, the Texas Law travels to Houston to investigate the Relevance Objection.

Mr. Leonard Reed was convicted of aggravated assault and aggravated sexual assault and sentenced to 80 years in prison. He appealed, claiming, other things, that the trial court improperly overruled his relevancy objection to State proferred testimony.

Texas Rule of Evidence 401 defines relevant evidence as “evidence that has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable that it would be without the evidence.” Rule 402 states that “all relevant evidence is admissible.”

Evidence need not, by itself, prove or disprove a fact all at once. Rather, as stated in Stewart v. State, 129 S.W.3d 93 (Tex. Crim. App. 2004), evidence is relevant if the “the evidence provides a small nudge toward proving or disproving some fact of consequence.”

In this case the evidence presented did not in itself prove a fact of consequence. However, it did provide facts which relevant to an issue of the trial. Thus, the evidence was admissible and the trial court properly overruled the hearsay objection. Conviction affirmed.

Leonard Reed, Jr. v. The State of Texas
On Appeal from the 179th District Court; Harris County, Texas

When is a Statement Testimonial?

Crawford established the rule that the 6th amendment bars admission of testimonial statements made by a witness who did not testify at trial, unless the witness was unavailable to testify, and the defendant had a prior opportunity to cross-examine the witness. Crawford left unanswered the question of what constitutes “testimonial.” Earlier this year, the Supreme Court answered this question in Davis v. Washington.

Davis combined two cases, one from Washington and the other from Indiana. In the case from Washington, Davis v. Washington, Mr. Davis was convicted of felony violation of a domestic no-contact order. At trial, the State introduced over defense objection the statements made by Mr. Davis’ girlfriend to a 911 operator. The statements made by Ms. Davis to the operator relayed the events of the altercation with her boyfriend as these events were unfolding. She did not testify at trial and Mr. Davis had no prior opportunity to cross-examine her.

In the Indiana case, Hammon v. Indiana, Mr. Hammon was convicted of domestic battery. The State introduced at trial an affidavit signed by Ms. Hammon and given to police at the time of the incident. The statements Ms. Hammond made were her recollection of the altercation. She did not testify at trial and Mr. Hammon had no prior opportunity to cross-examine her.

The Supreme Court ruled that the Washington court’s admission of the statements made to and by the 911 operator were not testimonial. Conversely, the Court ruled the statements in Hammon were testimonial. In so doing, the Court established the rule by which statements will be deemed testimonial or not. In essence, the determination turns on the tense in which the statements are relayed to police. Generally, if told in the past tense, the statements are testimonial. If the statements to police are told in the present tense, then the statements are non-testimonial.

This is in keeping with a long line of Supreme Court precedent that reflects a trend that, generally, the higher degree of formality associated with the giving of the statement, the more likely it is that the statement is testimonial. The rule of Davis is that statements made to police are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. The admissibility of such statements is properly analyzed under existing hearsay rules. Such statements do not implicate the Confrontation Clause.

On the other hand, statements made under circumstances which objectively indicate that there is no ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

In the Washington case, the Court ruled that the statements were non-testimonial because they were made to a 911 operator to deal with an ongoing emergency. The Court ruled in the Indiana case that the statements were testimonial because they were made to a police officer after they had occurred. The police officer was in the process of investigating a potential crime.

Davis v. Washington; Hammon v. Indiana
Supreme Court of the United States