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Braughton v. State

Court of Appeals of Texas, First District

April 20, 2017


         On Appeal from the 228th District Court Harris County, Texas Trial Court Case No. 1389139

          Panel consists of Justices Keyes, Brown, and Huddle.


          Harvey Brown Justice.

         We issued our original opinion in this case on December 29, 2016. Appellant, Christopher Braughton, filed a motion for rehearing. We overrule the motion for rehearing, withdraw our previous opinion, and issue this substitute opinion. The disposition remains the same.

         Chris Braughton, age 21, shot Emmanuel Dominguez, age 27, on the street outside Chris's parents' home at approximately 10:00 p.m. The shooting followed an episode of road rage between Dominguez and Chris's father, Christopher Braughton Sr., age 40, while Braughton Sr. was driving home with his wife and other son, age 13. According to the statement of Chris's mother, Dominguez "cut us off and then pulled up beside us and followed us home." Although many of the events after that point are disputed, it is undisputed that Dominguez and Braughton Sr. engaged in a physical altercation in which Dominguez punched Braughton Sr., that Chris ran out of the house brandishing a gun in an attempt to protect his father, and that the fight stopped at least momentarily when Dominguez knocked Braughton Sr. to the ground and Chris first spoke. The evidence is mixed on whether Dominguez said he had a gun, but the evidence is undisputed that no gun was found on Dominguez or within his reach and that Chris aimed his gun at Dominguez and shot him once, killing him.

         A jury found Chris guilty of murder and assessed his punishment at 20 years' confinement.[1] In three issues, Chris argues that (1) the evidence is legally insufficient to establish that he had the required mental state to commit murder; (2) the evidence is legally insufficient to reject his claims of self-defense and defense of others; and (3) the trial court committed reversible error by denying his request to provide an instruction in the jury charge on the lesser-included offense of deadly conduct.

         We affirm.


         A. The Braughton family encounters Dominguez

         Emmanuel Dominguez, the complainant, was a United States Marine, preparing to leave the Marine Corps and using up his vacation time until his discharge. In early May 2013, Dominguez moved to Spring, Texas and rented a house with his girlfriend, Jessica Cavender, who was also a United States Marine and had recently been assigned as a recruiter in Conroe, Texas. Their house was on Greenland Oak Court.

         On May 24, 2013, Dominguez and Cavender went to a restaurant, where they ate, drank beer, and socialized. While there, they met another Marine who invited them to an icehouse, where they continued drinking. Sometime later, yet another veteran invited them to a karaoke bar, where they continued socializing and drinking. While at the karaoke bar, Dominguez and Cavender got into a verbal disagreement, and Cavender refused to accompany him to their home. Dominguez, who was intoxicated, left alone on his motorcycle.[2]

         That same evening, Chris's father ("Braughton Sr."), mother ("Mrs. Braughton"), and younger brother were dining out while Chris, age 21, stayed home at his parents' house. The Braughtons, like Dominguez, lived on Greenland Oak Court, but Chris had never met Dominguez. After dinner, at approximately 10:00 p.m., Braughton Sr. began driving home, with Mrs. Braughton and their younger son riding in the family vehicle.

         Braughton Sr. testified that, as they were nearing their home, he was driving approximately 15 to 18 miles per hour in an area with a 20-mile-per-hour speed limit when he saw a "big bright light" immediately behind his vehicle. He testified that he then heard "a really loud revving sound, " and then a vehicle alarm alerted that there was an object very close to the vehicle's rear bumper. He determined from the light, the engine sound, and the vehicle's alarm that a motorcycle was very close behind his car.

         According to Braughton Sr., Dominguez, who was driving the motorcycle, came around the side of the car, "tried to swerve into the side of the car, " then came around the front of the car and "slam[med] on his brakes." The vehicle's proximity sensors again sounded. Braughton Sr. "slam[med]" on his own brakes to avoid hitting the motorcycle, then sped around the motorcycle and continued heading home. Dominguez followed the Braughton family onto Greenland Oak Court, where, unknown to either driver, they both lived.

         As the Braughtons approached their house in their vehicle, Mrs. Braughton called Chris and told him they were being chased. Braughton Sr. testified that his wife said, "Son, there's a guy chasing us. I'm scared, " while Mrs. Braughton recalled saying, "Son, this guy is chasing us. We are right by the house." The call lasted less than seven seconds, and Mrs. Braughton did not tell Chris to come outside, arm himself, or indeed to do anything at all. Braughton Sr. and Mrs. Braughton testified that they believed that Dominguez was attempting to rob or carjack them. No one, however, called either 9-1-1 or a non-emergency police line at that time.

         According to Braughton Sr., the motorcycle "start[ed] coming around the car" again and blocked the Braughtons' driveway. Braughton Sr. drove around the cul-de-sac at the end of Greenland Oak Court, stopping on the opposite side of the street from his home. Dominguez stopped his motorcycle near the driveway to the home of Robert Bannon, who lived in the home between the Braughton residence and the house rented by Dominguez. Bannon, who was sitting in his driveway at the time, noticed that the motorcycle was only one or two feet away from the Braughtons' car and "thought [Dominguez] didn't know how to drive a motorcycle because he looked like he was kind of wobbling." Dominguez dismounted or fell off the motorcycle without engaging the kickstand, and then he either threw down the motorcycle or let it fall to its side in the street.

         B. Braughton Sr. and Dominguez confront each other

         According to Glen Irving, a neighbor who witnessed the events, Dominguez "rather quickly" approached the Braughtons' car, and Braughton Sr. got out of his vehicle. But according to Bannon, Braughton Sr. "quickly" got out of the car and "immediately yelled" at Dominguez, demanding to know, "Why the f___ you following me so close for?" Both Bannon and Irving testified that the two men yelled and swore at each other. Irving also testified that Dominguez began punching Braughton Sr. in his face and "beating him up, " while Braughton Sr. attempted to defend himself.

         Braughton Sr. testified that, while these events were unfolding, he was yelling to his wife, "Get inside, " and, "Call 9-1-1, " at which point Dominguez began punching him. Braughton Sr. testified that Dominguez hit him two or three times. Dominguez then knocked Braughton Sr. to the ground. This altercation occurred closer to the motorcycle than to the Braughtons' car.[3]

         Meanwhile, Chris, who was inside the Braughtons' home, had run to the front door and heard a "loud motorcycle noise." He went to his parents' bedroom, where he kept a 9-millimeter handgun that he had purchased approximately three months earlier. He retrieved the gun and the magazine, which was kept separately, inserted the magazine into the gun, and pulled back the slide to chamber a bullet. At this point, according to Chris, the safety mechanism on the gun was disengaged and the gun was ready to fire.

         During the altercation between Dominguez and Braughton Sr., Chris came out of his parents' house with the loaded gun, saw Dominguez hitting Braughton Sr., and said two or three times, "I have a gun, " or, "Stop, I have a gun." Chris testified that, when he left the house, he had not seen or heard that anyone outside had a weapon of any kind and did not know who had started the fight. There is no evidence in the record that Chris knew that a physical fight was underway before he left the house with a gun. And Chris conceded at trial that the fight was closer to the motorcycle than to the car, indicating that his father had moved farther than had Dominguez. Braughton Sr. did not see Chris exit the house; rather, he first saw him when Chris was three feet away from Dominguez, pointing the gun at Dominguez. According to Mrs. Braughton's sworn statement, she said around this time, "Chris, go, you know, take the gun inside. Take the gun inside."

         C. Dominguez reacts to the gun

         Witnesses at trial gave conflicting accounts of what happened next. Chris, Braughton Sr., Mrs. Braughton, and Irving all testified that Dominguez then verbally responded to Chris and either moved toward or reached into the saddlebags on the motorcycle. The details of their testimony, however-whether Dominguez indicated that he had a gun and whether he actually reached his motorcycle, which was some unspecified distance away from the fight-conflicted. Specifically, Chris testified that Dominguez said, "Oh, you have a gun, m___ f___ . I have a gun for you, " then reached into a saddlebag on the motorcycle. He later testified, however, that Dominguez used the word "something, " not "a gun."

         According to Braughton Sr., Dominguez "reache[d] down and he [said], 'You got a gun, m___ f ___, I have something for your f___ a___.'" Elsewhere in his testimony, however, Braughton Sr. recalled that Dominguez said "gun, " not "something." Braughton Sr. specifically testified that Dominguez "reache[d] in[to]" the saddlebag before he was shot.

         Mrs. Braughton testified that Dominguez "reache[d] towards his bike, the boxes on his bike, " and quoted him as saying, "You have a gun, m___ f___ . I have something for your a___." Elsewhere in her testimony, she reported the second sentence as, "I have a gun for your a___." She also testified that she saw Dominguez reaching toward his motorcycle while she was running into her home.

         Neighbor Irving testified that Dominguez "turned and started back towards the motorcycle, and [Irving] heard a voice say, 'Yeah, I got a gun, too . . . .'" When pressed to "recall exactly what [he] heard, " Irving said that he heard either "I got a gun, too, " or possibly, "I've got something for you . . . ." He testified that he could not "say 100 percent positively" which statement he heard. Although Irving testified that Dominguez moved toward the motorcycle, he did not see Dominguez reach into the saddlebags. He testified that, if Dominguez had done so, he "should have been able to see it" from his vantage point, but he could not "say positively that [he] would have seen it."

         Chris testified that Dominguez was positioned with the saddlebag to his left, reached across his body with his right arm, turning as he did so, and began to straighten up. Similarly, Braughton Sr. testified that Dominguez reached toward a saddlebag on the motorcycle, "just grab[bed] the box and open[ed] it, " then reached into it.

         Gina, [4] a high-school junior who also lived on Greenland Oak Court, testified with a different account. Gina watched events unfold from her second-story bedroom window in a house across the street. Gina testified that she could not see many details of the scene "clearly" because a light-blocking screen on her window made her view of the street "blurry." She could not see faces clearly and did not see a gun, but testified that she heard Mrs. Braughton tell Chris, "Put the gun down." Gina further testified that, instead of complying, Chris replied, "No, I got a gun now, " and walked toward Dominguez, who "stopped and put his hands up" and "slowly back[ed] up." Gina physically demonstrated the shooting at trial on direct examination, but the record does not reflect any testimony regarding the orientation of Dominguez's body with respect to either Chris or Chris's gun.[5] Gina did not see Dominguez approach the motorcycle, open a saddlebag, or reach for anything.

         D. Chris kills Dominguez

         The remaining sequence of events is undisputed. Chris testified that he "pointed [the gun] towards [Dominguez's] arm" without "aiming at a specific area on him" and pulled the trigger. He shot Dominguez one time. The bullet hit Dominguez under his right armpit, toward the back of his body. It traveled right to left, "very slightly upward, " and "slightly back to front, " puncturing both of Dominguez's lungs and damaging his "aorta, the major artery coming out from the heart, " resulting in the loss of at least three liters of blood. The medical examiner who later examined Dominguez, Dr. Morna Gonsoulin, testified that such injuries can kill a person "within seconds."

         Dominguez fell to the ground. According to Gina, Mrs. Braughton then said to Chris, "What did you do?"

         Mrs. Braughton dialed 9-1-1 on her cell phone and handed the phone over to Braughton Sr., who talked to dispatch. Braughton Sr. explained several times during the call that a man had chased his family and attacked him and that his son-that is, Chris-shot the attacker. He did not mention any verbal threats by Dominguez, nor did he say that anyone feared a carjacking or robbery at any time. Although Mrs. Braughton and Bannon attempted to perform CPR, Dominguez died on the scene. Chris placed the gun in the house, waited for the police, and identified himself as the shooter to police when they arrived at the scene.

         The investigating officers took statements from a number of witnesses, including Gina. The officers made an audio recording of their interview with Gina. Sergeant A. Alanis of the Harris County Sheriff's Office testified that he attempted to take statements from Braughton Sr. and Mrs. Braughton, but both declined to give statements. Braughton Sr. testified that he attempted to write a statement, but an officer took away the clipboard that he was writing on. Mrs. Braughton gave a written statement in which she wrote that Dominguez "trie[d] to pull something out of his box on his bike" but did not mention any threats by Dominguez. At the time of the shooting, officers did not identify Irving as a witness.

         E. Evidence at trial

         The State charged Chris with murder. At trial, Gina testified that she did not have a relationship with or know the names of any of the individuals involved, although she recognized them as her neighbors and was able to associate them with their respective homes. She identified the participants by the color of the clothing that they wore on the night in question and their respective genders. Using those descriptions, she testified that she saw Braughton Sr. and Dominguez arguing when Chris came from the direction of the Braughtons' house "with his right arm stretched out with a gun in his hand." She testified that Chris "just walk[ed] straight to [Dominguez] and then he stop[ped]." Gina stated that Dominguez was backing up with his arms raised when Chris shot him.

         Gina confirmed that her memory of events "would be better whenever I made the statement" to police on the night of the shooting than at trial and that everything she had said in her statement was true and correct. Her statement was admitted into evidence and played for the jury. In it, as at trial, she described the participants in the confrontation by clothing and gender, though she stated that the person in black-that is, Chris-argued and engaged in a shoving match with the person in red-that is, Dominguez. She stated that the person in black had a gun and shot the person in red one time. At trial, she testified that she had misspoken and that the person in orange-that is, Braughton Sr.-was the person who had argued with Dominguez.

         The State also presented testimony by Bannon, who testified that he did not "see anyone throw a punch or kick at each other, " though he was "maybe 20 feet away" from the confrontation and had "a good view" of both men. Rather, he testified that Braughton Sr. and Dominguez were "[j]ust yelling." Bannon heard Chris say, "I have a gun, " then heard a woman, possibly Mrs. Braughton, say, "'We're recording you, ' or 'We're recording this.'" He testified that he "thought there was a fight about to break out" at the moment when Chris came out of the house. When Bannon saw that Chris had a gun, he went into his home to retrieve a rifle to "try to [defuse] the situation [and] have [Chris] put his gun down." He testified that he neither saw nor heard the shot being fired. By the time Bannon returned to his front door, Dominguez was lying on the ground, so Bannon went outside without the rifle.

         The State called three investigating law enforcement officers: Corporal J. Talbert of the Constable's Office, Precinct 4; Sergeant Alanis; and Harris County Sheriff's Deputy D. Medina. All three had responded to the scene of the shooting. Corporal Talbert authenticated several photographs as fair and accurate representations of the scene as it appeared when he arrived. Several of these photographs show one of the two saddlebags on Dominguez's motorcycle open. Deputy Medina testified that she found no gun or other weapons on Dominguez's person or in his saddlebags but that one of the saddlebags was open when she arrived on the scene.

         Corporal Talbert specifically noted "a cell phone . . . towards the middle of the cul-de-sac." He testified, "Somebody tried to pick up the cell phone that was in the cul-de-sac" but he "told them to leave it where it was." Sergeant Alanis also testified that law enforcement collected a cell phone in the cul-de-sac and that he "was advised it was the defendant's father's." He also testified, "The father requested the phone back, and I told him it was going to be evidence until it was downloaded." By the time Alanis attempted to search the phone, it "had been wiped" and "appeared like when you buy a brand new phone." Alanis was not able to recover any information from the phone.

         Dr. Gonsoulin, the assistant medical examiner who conducted Dominguez's autopsy, testified that Dominguez died from a single gunshot wound and that the path of the bullet went "basically from the right armpit to the left armpit." For the bullet to follow its trajectory, Dominguez had to have exposed his right armpit and had his left side slightly lower than the right when he was shot. According to Dr. Gonsoulin, this meant that Dominguez could have been shot while bending, reaching, or extending his right arm across his body toward his left side. She testified that the gun could not have been "straight ahead pointing" at Dominguez's chest. Dominguez could have been shot while turning, but it was "impossible" for him to be "shot facing the shooter with his arms up." She also testified, however, that in general reaching down and across the body would not sufficiently expose the armpit, explaining, "There might be an angle where you could just be reaching down and [the wound area] would be exposed, but you would have to at least extend your shoulders slightly to get the differential in the arms." Dr. Gonsoulin's testimony was supported by photographic evidence showing that the gunshot wound was under Dominguez's right arm, an X-ray image showing the bullet inside the left side of Dominguez's chest, and the autopsy report describing the bullet's trajectory.

         The State presented further testimony. Harris County Sheriff's Deputy F. Williams testified that he unsuccessfully attempted to recover video from the Braughtons' home security system. S. Williams, a forensic chemist, testified that Chris had gunshot residue on both of his hands when samples were taken shortly after the shooting. A firearms examiner testified regarding the operation of Chris's gun. A DNA analyst, Z. Phillips, testified that she found DNA consistent with Braughton Sr.'s DNA on a knuckle on Dominguez's right hand but did not find any DNA consistent with Chris's DNA on Dominguez.

         The State presented testimony from Cavender regarding her relationship with Dominguez, their move to Spring, and the time they spent together the day Dominguez died. Cavender testified that Dominguez did not have any weapons on his person or on his motorcycle on the day he died. Her phone and keys were in the motorcycle's saddlebags at the time of the shooting.

         The defense presented testimony from Glen Irving, Braughton Sr., and Mrs. Braughton that Dominguez was chasing the Braughtons erratically down the street and riding "almost on [their] bumper." The Braughtons all testified that Mrs. Braughton frantically called Chris while Dominguez was chasing them. Irving and the Braughtons testified that Dominguez and Braughton Sr. fought. According to Irving, Dominguez was "punching and beating up" Braughton Sr. The Braughtons each testified that at that time they were afraid for their lives. Irving and the Braughtons testified that Chris warned Dominguez as the latter was hitting Braughton Sr., "Stop, I have a gun." They all testified that Dominguez knocked down Braughton Sr. and went toward his motorcycle, cursing and threatening that he had "a gun" or "something for" Chris. Each of these witnesses also testified, however, that they never saw a gun or other weapon in Dominguez's possession.

         Braughton Sr. testified that he lost his phone on the evening in question. Specifically, he testified that it fell out of his back pocket when Dominguez punched him. He testified that the police took the phone and that the Braughtons "kept asking" where the phone was but that they never regained possession of it. Mrs. Braughton tracked the phone belonging to her youngest son, which was also missing, using an app on her own phone and found that it was "on the next street and was driving away." An officer returned with that phone but said he did not have Braughton Sr.'s phone. According to Braughton Sr., when the Braughtons tracked his phone, they found that it was in Pasadena, assumed it was stolen, and remotely reset it to its factory state.

         The defense also presented Gary Gross, who installed the solar screen in Gina's bedroom window. He testified that the screen was a "90 percent Suntex solar screen, " meaning that it would "block 90 percent of visible light, " was designed to provide privacy, and would be difficult to see through at night. According to Gross, at 10:00 p.m., it would be possible to see "some visible light" through the screen and to "see something, " but not to "make out what it is." He confirmed that it would "probably not" be possible for anyone looking through the screen at that time to "make out what they are seeing."

         Chris testified that he "was just pointing [the gun] at [Dominguez's] arm" and "just wanted to stop him." According to Chris, he had the gun in the air initially, but he brought it down to his hip to fire. He testified that is not the same way that he would "fire at a gun range." He testified that he was "[n]ot behind [Dominguez but] on the side of him" when he fired the shot. He conceded that he pointed the gun at Dominguez, pulled the trigger, and thought "that a bullet was going to hit" Dominguez. He also testified as follows:

Q. You're aware that a bullet hitting somebody can cause serious bodily injury, correct?
A. Sometimes, yes, sir.
Q. So you were aware that-you were aware that you were intending to cause serious bodily injury to Manny Dominguez?
A. Yes, sir.

         He also explained that he had "receive[d] some basic information about the operation of the gun" from the salesperson and had fired it at a shooting range on two occasions.

         The trial court charged the jury, instructing it on the offense of murder and the lesser-included offense of manslaughter. Additionally, the trial court instructed the jury on the law of self-defense, defense of a third person, and defense of property. Chris requested that the trial court also include an instruction on the lesser offenses of misdemeanor and felony deadly conduct, but the trial court refused.

         The jury convicted Chris of murder and assessed his punishment at 20 years' confinement. This appeal followed.

         Sufficiency of the Evidence

         In his first two issues, Chris argues that the evidence was legally insufficient to support his conviction. In the first issue, he argues that no evidence, whether direct or circumstantial, establishes that he possessed the required mental state to commit murder. In the second issue, he argues that the evidence was insufficient to prove beyond a reasonable doubt that he did not act in self-defense or in defense of others.

         A. Standard of review

         When reviewing the sufficiency of the evidence, we view all of the evidence in the light most favorable to the prosecution to determine whether any rational factfinder could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); see Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that Jackson standard is only standard to use when determining sufficiency of evidence); Nelson v. State, 405 S.W.3d 113, 122 (Tex. App.- Houston [1st Dist.] 2013, pet. ref'd). The jury is the exclusive judge of the facts and the weight to be given to the testimony. Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008). A jury, as the sole judge of credibility, may accept one version of the facts and reject another, and it may reject any part of a witness's testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); see also Henderson v. State, 29 S.W.3d 616, 623 (Tex. App.-Houston [1st Dist.] 2000, pet. ref'd) ("Even when a witness's testimony is uncontradicted, the jury can choose to disbelieve a witness.").

         We afford almost complete deference to the jury's credibility determinations. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). We may not re-evaluate the weight and credibility of the evidence or substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) (citing Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999)). Rather, we determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Thornton v. State, 425 S.W.3d 289, 303 (Tex. Crim. App. 2014). We resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) ("When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the prosecution and therefore defer to that determination.").

         Circumstantial evidence is as probative as direct evidence in establishing guilt, and circumstantial evidence alone can be sufficient to establish guilt. Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011); Clayton, 235 S.W.3d at 778. "Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). "Evidence is legally insufficient when the 'only proper verdict' is acquittal." Nelson v. State, 405 S.W.3d 113, 122 (Tex. App.-Houston [1st Dist.] 2013, pet. ref'd) (quoting Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S.Ct. 2211, 2218 (1982)).

         The jury's ultimate conclusion must be rational in light of all the evidence. See, e.g., Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Matlock v. State, 392 S.W.3d 662, 673 n.45 (Tex. Crim. App. 2013); Adames, 353 S.W.3d at 860; Nelson, 405 S.W.3d at 122-23. In reviewing the sufficiency of the evidence when a jury has rejected claims of self-defense or defense of others, we must "determine whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of murder beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt." Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).[6] When some evidence, if believed, supports a self-defense claim, but other evidence, if believed, supports a conviction, we, as an appellate court, "will not weigh in on this fact-specific determination, as that is a function reserved for a properly instructed jury." Reeves v. State, 420 S.W.3d 812, 820 (Tex. Crim. App. 2013).

         B.Mens ...

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