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Roy v. State

Court of Criminal Appeals of Texas

February 15, 2017

KELVIN LEE ROY, Appellant
v.
THE STATE OF TEXAS

         ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE NINTH COURT OF APPEALS ORANGE COUNTY

          Hervey, Alcala, Richardson, Yeary, Newell, Keel, and Walker, JJ., joined. Keller, P.J., dissented.

          OPINION

          Keasler, J.

         Kelvin Lee Roy was convicted of murder and sentenced to seventy-five years' imprisonment. The trial judge denied his request for a jury instruction on the lesser-included offense of manslaughter. Because there was more than a scintilla of evidence that would allow a jury to rationally find that if Roy was guilty, he was guilty of only manslaughter, we reverse the court of appeals' judgment affirming the trial judge's ruling and remand for a harm analysis.

         I.

         On February 7, 2014, Roy crashed into another vehicle and killed Alexandria Bertrand.

         The State presented the following evidence. Roy was driving with his girlfriend, Taralynn Brown, when he suddenly "snapped." Roy began muttering to himself and lit a cigarette that had been dipped in PCP, a "dip cigarette." He refused to pull over despite Brown's repeated and frantic requests that he do so. Multiple witnesses testified that Roy was driving in two lanes, swerving, and speeding. Brown started screaming for help and continued to ask Roy to pull over. Roy told Brown, "Oh, you're scared? I'm going to kill both of us. I'm going to kill both of us." Roy then drove toward the train tracks where two cars were stopped at the light. He accelerated. His car flew through the air and crashed into another car, propelling the passenger, Bertrand, out of that car and killing her.

         Roy's testimony at trial differed. According to Roy, he never "snapped" or threatened Brown's life, and he never intended to harm Brown or kill Bertrand. He stated that he blacked out while driving and had no memory of the crash, but he did remember the following events. As Roy was driving, he and Brown drank alcohol and smoked marihuana. While driving, Roy lit and smoked a dip cigarette. He quickly began to feel dizzy and faint. Roy asked Brown to take control of the car and blacked out. His blood tested positive for benzodiazepine, phencyclidine (PCP), and tetrahydrocannabinol (THC). His blood-alcohol level was below the legal limit. Before the accident, dip cigarettes regularly made Roy feel dizzy and disoriented and once caused him to black out. Despite knowing the risks associated with drinking alcohol, smoking marihuana, and smoking dip cigarettes while driving, Roy chose to drive that night.

         The State charged Roy with murder under Penal Code § 19.02(b)(2). A jury convicted Roy of murder and sentenced him to seventy-five years' imprisonment. The indictment alleged that Roy intended to cause serious bodily injury to Taralynn Brown and committed an act clearly dangerous to human life-driving into another car-which caused the death of Alexandria Bertrand. Roy appealed his conviction, alleging that the trial judge erred by overruling his request for a jury instruction on the lesser-included offense of manslaughter. The court of appeals affirmed the conviction.[1] We granted Roy's petition for discretionary review to determine whether he was entitled to an instruction on the lesser-included offense of manslaughter.

         II.

         We apply a two-part analysis to determine whether a defendant is entitled to an instruction on a lesser-included offense.[2] We begin by determining whether the offense in the requested instruction is a lesser-included offense of the charged offense.[3] If it is, then we must decide whether a jury could, based on the admitted evidence, rationally find that if the defendant is guilty, he is guilty of only the lesser-included offense.[4] Because we have previously held that manslaughter is a lesser-included offense of murder charged under § 19.02(b)(2), we move directly to the analysis's second part.[5]

         An instruction on a lesser-included offense is required only when there is some admitted evidence directly germane to that offense.[6] We consider all admitted evidence without regard to the evidence's credibility or potential contradictions or conflicts.[7] An instruction is required if more than a scintilla of evidence establishes "that the lesser-included offense is a valid, rational alternative to the charged offense."[8] Although little evidence is needed to trigger an instruction, the relevant evidence must affirmatively "raise[] the lesser-included offense and rebut[] or negate[] an element of the greater offense."[9]

         Roy was charged with murder under § 19.02(b)(2) and requested an instruction on the lesser-included offense of manslaughter under § 19.04. To be entitled to the instruction, Roy must have presented more than a scintilla of evidence raising manslaughter under § 19.04 and rebutting or negating murder under § 19.02(b)(2).[10] At trial, Roy testified that he never intended to injure Brown. This testimony negates the intent element of murder but does not, on its own, raise manslaughter.[11]

         To raise manslaughter, Roy must have presented affirmative evidence that he recklessly caused the death of Alexandria Bertrand, specifically that he was aware of, but consciously disregarded, a substantial and unjustifiable risk that the result-a death-would occur.[12] We look to the admitted evidence to determine whether Roy is entitled to the instruction.

         The court of appeals correctly identified the two-part analysis, but misconstrued Schroeder v. State.[13] Relying on Schroeder, the court of appeals held that, because Roy's testimony demonstrated he was unconscious at the time of the accident, he was not entitled to an instruction on manslaughter.[14] The court of appeals' reliance on Schroeder was incorrect in two ways. First, Schroeder is factually distinguishable. Second, Schroeder does not, as the ...


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