No. 05 10 00458 CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS STEVEN TYRONE DEAMON, Appellant v. THE STATE OF TEXAS, Appellee Appeal from the 283rd Judicial District Court of Dallas County, Texas Cause Nos. F09 52976 APPELLANT S BRIEF Lynn Richardson Chief Public Defender Counsel of Record: Brian W. Portugal Assistant Public Defender Dallas County Public Defender s Office Katherine A. Drew State Bar Number: 24051202 Chief, Appellate Division 133 N. Riverfront Blvd., LB 2 Dallas County Public Defender s Office Dallas, Texas 75207 (214) 653-3550 (telephone) (214) 653-3539 (fax) ATTORNEYS FOR APPELLANT
LIST OF PARTIES APPELLANT DEFENSE COUNSEL AT TRIAL APPELLANT S COUNSEL ON APPEAL STATE S COUNSEL AT TRIAL Steven Tyrone Deamon Janet Cook Trey Bunch Stephen Duplantis Assistant Public Defenders Dallas County Public Defender s Office 133 N. Riverfront Blvd., LB 2 Dallas, Texas 75207 Brian W. Portugal Assistant Public Defender Dallas County Public Defender s Office 133 N. Riverfront Blvd., LB 2 Dallas, Texas 75207 Alex Zocchi Andrea Handley Assistant District Attorneys Dallas County District Attorney s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas 75207-4399 STATE S COUNSEL ON APPEAL Craig Watkins (or his designated representative) Dallas County District Attorney s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas 75207 ii
TABLE OF CONTENTS STATEMENT OF THE CASE... 1 ISSUE PRESENTED... 1 STATEMENT OF FACTS... 1 SUMMARY OF THE ARGUMENT... 3 ARGUMENT... 3 PRAYER... 7 CERTIFICATE OF SERVICE... 7 iii
INDEX OF AUTHORITIES Cases Bell v. State, 693 S.W.2d 434 (Tex. Crim. App. 1985)... 4 Boles v. State, 598 S.W.2d 274 (Tex. Crim. App. 1980)... 4 Hall v. State, 158 S.W.3d 470 (Tex. Crim. App. 2005)... 3, 4 Smith v. State, 297 S.W.3d 260 (Tex. Crim. App. 2009)... 5 Statutes TEX. CODE CRIM. PROC. art. 37.09(1)... 3, 5 TEX. PENAL CODE 12.31(a)(2)... 4 TEX. PENAL CODE 12.32(a)... 4 TEX. PENAL CODE 12.42(c)(1)... 5 TEX. PENAL CODE 19.02(b)(1)... 5 TEX. PENAL CODE 19.03(a)... 5 TEX. PENAL CODE 29.02(a)... 5 TEX. PENAL CODE 31.03(a)(1)... 5 iv
TO THE HONORABLE COURT: Appellant Steven Tyrone Deamon submits this brief in support of his appeal of the judgment of the 283rd Judicial District Court of Dallas County, Texas in cause number F09 52976. STATEMENT OF THE CASE A grand jury charged Appellant by indictment with capital murder. (CR: 2). Appellant pled not guilty and proceeded to trial by jury. (RR5: 12). The jury found Appellant guilty, and the trial court sentenced Appellant to life imprisonment. (CR: 81; RR5: 196). Appellant gave timely notice of appeal. (CR: 86). ISSUE PRESENTED The trial court erred by refusing to charge the jury on the lesser included offense of murder. STATEMENT OF FACTS Eric Boden was killed at the B&B Pawn Shop where he worked. (RR5: 37, 48). Boden s co-worker, Eric Rangel, a Hispanic man, testified that he and Boden were the only employees working at the pawn shop on March 23, 2009. (RR5: 37). Rangel and Boden were finishing a transaction when two black males, who had been in the store for some time, began a robbery. (RR5: 47 48). One of the men asked Rangel to look at a piece of jewelry, and while Rangel showed it to him, he heard Boden call his name. (RR5: 47 48). Rangel turned and saw Appellant, the other black male, with a gun to Boden s head. (RR5: 48). Rangel ran for the rear of the store to find something to defend himself, and the man who wanted to see the jewelry followed. (RR5: 48). The
man asked him repeatedly, Where s the money at, nigger? (RR5: 48). Rangel showed the man the safe and told him that there was no money in it. (RR5: 48). Rangel explained to the man that the money was in the front of the store in the cash register. (RR5: 48). During the exchange, Rangel heard a popping sound from the front of the store, and ran back to the front. (RR5: 48). Rangel saw Boden on the ground bleeding. (RR5: 48). Rangel testified that Appellant pointed a gun at him and was smiling. (RR5: 48). Appellant then said Where s the money at, nigger? (RR5: 49). As Rangel was opening a drawer, Appellant asked him Where s the tape at? (RR5: 49). Rangel answered that the surveillance cameras were dummies. (RR5: 49). Appellant told Rangel to lay down, and Rangel responded Hell, no. Ain t dying today. (RR5: 49). Rangel fled the store. (RR5: 49). Rangel ran to a nearby Sherwin Williams paint store and called the police. (RR5: 49). Rangel had lied to Appellant about the cameras; they were functioning, and they recorded the incident. (S.E. 17, 18). 1 Additionally, the State introduced Appellant s videotaped statement, in which he admitted shooting Rangel. (S.E. 25, 26). 2 After the State had rested its case, the defense called Michael Hammer, an inmate in the Dallas County Jail, who testified that he heard Appellant s accomplice say that he had been involved in a robbery of the B&B Pawn Shop and that it was an inside job 1 Undersigned counsel had great difficulty trying to open the video files on these DVDs. Undersigned counsel was only able to view the surveillance video by copying all of the contents of each DVD to a file created on his computer s desktop and then viewing the video using the built in Qlog Viewer. The relevant portions of the video surveillance begin at approximately 9:15:38 under file 2002 subfile 01 sub-sub file 02. The date and time for the recordings are inaccurate, as was testified to at trial. (RR5: 19). 2 These two discs were introduced at trial as Exhibit 25, but they are marked as Exhibits 25 and 26. Exhibit 26 is the first part, and Exhibit 27 is the second part. 2
involving a Hispanic man. (RR5: 174). Based on this evidence, Appellant sought an instruction on the lesser included offense of murder, arguing that the evidence tended to negate the aggravating element of robbery. (RR5: 176 77). The trial court refused to give the instruction. (RR5: 176 77). SUMMARY OF THE ARGUMENT The defense requested a jury instruction on the lesser included offense of murder based on evidence that tended to negate the robbery element of the charged offense of capital murder. The trial court erroneously denied that request. ARGUMENT At trial, the defense introduced evidence that the robbery was an inside job that involved Eric Rangel, the surviving pawn shop employee. That evidence negated the robbery element of the charged offense of capital murder. Appellant was therefore entitled to an instruction on the lesser included offense of murder. Applicable Law A defendant is entitled to an instruction on a lesser included offense when 1) the lesser offense actually is a lesser included offense of the offense charged and 2) the record contains some evidence that would permit a rational jury to find that the defendant is guilty only of the lesser included offense. Hall v. State, 158 S.W.3d 470, 473 (Tex. Crim. App. 2005). An offense is a lesser included offense of the charged offense if it is established by proof of the same or less than all the facts required to establish the commission of the offense charged. TEX. CODE CRIM. PROC. art. 37.09(1). For the 3
issue to be raised by the evidence means that there must be some evidence from which a rational jury could acquit [the defendant] of [the charged offense] while convicting him of the lesser included offense. Hall, 158 S.W.3d at 473. In making this determination, the court evaluates the evidence in the context of the entire record, but does not consider whether the evidence is credible, controverted, or in conflict with other evidence. Id. (emphasis added). A defendant is entitled to an instruction on every issue raised by the evidence, regardless of whether the State or the defense presented the evidence. Bell v. State, 693 S.W.2d 434, 442 (Tex. Crim. App. 1985). To preserve the error of a trial court s failure to submit an instruction on a lesser included offense, a defendant must request the instruction or object to the omission of the instruction. Boles v. State, 598 S.W.2d 274, 278 (Tex. Crim. App. 1980). Application of Law to the Facts Here it is indisputable that Appellant preserved the trial court s error Appellant requested the instruction on the record, and the trial court refused to include it. (RR5: 176 77). It is likewise indisputable that Appellant was harmed by the refusal. On the charge of capital murder, Appellant faced a mandatory sentence of life imprisonment without the possibility of parole. TEX. PENAL CODE 12.31(a)(2). On the lesser included offense of murder, Appellant faced a statutory sentencing range of 5 99 years imprisonment or life imprisonment with the possibility of parole. TEX. PENAL CODE 12.32(a). 4
It is also indisputable that murder was a lesser included offense of the charged offense of capital murder because capital murder is defined as murder and an additional aggravating element. See TEX. CODE CRIM. PROC. art. 37.09(1); compare TEX. PENAL CODE 19.03(a) with TEX. PENAL CODE 19.02(b)(1); Smith v. State, 297 S.W.3d 260, 275 (Tex. Crim. App. 2009). Further, the evidence clearly raised the issue. Defense counsel called Michael Hammer, an inmate at the Dallas County Jail, who testified that he heard Appellant s accomplice say that he had robbed the B&B Pawn Shop and that it had been an inside job involving a Hispanic man. (RR5: 174). Eric Rangel, the surviving pawn shop employee, was a Hispanic man. (RR5: 67). Had the jury believed this testimony, it would have negated the aggravating element of the charged offense of capital murder, which was that a murder was committed in the course of a robbery. (CR: 2). If Rangel had care, custody, and control of the property taken from the pawn shop and authorized the taking, there was no robbery, and hence, there could be no capital murder as charged in the indictment. See TEX. PENAL CODE 29.02(a) (defining robbery as theft and an additional element); TEX. PENAL CODE 31.03(a)(1) (defining theft to be appropriation of another s property without effective consent ). Without consideration of the lesser included offense, Appellant was sentenced to the mandatory punishment of life imprisonment without the possibility of parole. (CR: 92); TEX. PENAL CODE 12.42(c)(1). Considering the vast range of potential sentence 5
5 to 99 years or life with the possibility of parole the trial court s error was severely prejudicial to Appellant. Appellant sought a correct instruction that was raised by the evidence but which the trial court refused. Appellant was entitled to present an alternative to the jury one that would have yielded a lesser punishment. The Court should therefore reverse Appellant s conviction and remand this cause for a new trial. 6
PRAYER Appellant prays that the Court reverse the trial court s judgment and remand this cause for a new trial. Respectfully submitted, Lynn Richardson Chief Public Defender Dallas County Katherine A. Drew Chief, Appellate Division Dallas County Public Defender s Office Brian W. Portugal Assistant Public Defender Dallas County Public Defender s Office State Bar Number: 24051202 133 N. Riverfront Blvd., LB 2 Dallas, Texas 75207 (214) 653-3550 telephone (214) 653-3539 fax Attorneys for Appellant CERTIFICATE OF SERVICE A copy of this brief has been hand-delivered to the Dallas County Criminal District Attorney s Office, Appellate Division, 133 N. Riverfront Blvd., Dallas, Texas 75207 on July 23, 2010. Brian W. Portugal 7
CERTIFICATE OF COMPLIANCE I certify that this submitted CD or e-mail attachment of the brief complies with the following requirements of the Court: 1. The brief is submitted on a CD or by e-mail attachment; 2. The CD or e-mail attachment is labeled with the following information: A. Case Name: B. The Appellate Case Number: C. The Type of Brief: D: Party for whom the brief is being submitted: E. The Word Processing Software and Version Used to Prepare the Brief: 3. The CD or e-mail attachment contains only an electronic copy of the brief and the appendix. The documents in the appendix conform to the requirements of Texas Rules of Appellate Procedure 9.8 and 38.1(k). 4. The CD or e-mail attachment is free of viruses or any other files that would be disruptive to the Court=s computer system. The following software, if any, was used to ensure the brief is virus-free:. 5. I understand that a copy of this brief may be posted on the Court s website and that the electronically filed copy of the brief becomes part of the Court s record. 6. Copies have been sent to all parties associated with this case. (Signature of filing party and date) (Printed name) (Firm) 8