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Howard v. State

Court of Appeals of Texas, First District

April 25, 2017

ASHLEY MERE HOWARD, Appellant
v.
THE STATE OF TEXAS, Appellee

         On Appeal from the 183rd District Court Harris County, Texas Trial Court Case No. 1465955

          Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

          OPINION

          Harvey Brown Justice

         Ashley Howard and her two friends stole merchandise from a department store, fled in a getaway car, and led the police on a high-speed chase, which came to an abrupt end when they ran a red light and crashed into a vehicle passing through the intersection, killing the driver, Rosalba Quezada. Howard was indicted for felony murder. She was convicted and sentenced to 35 years' confinement and fined $10, 000. In two issues, Howard contends that the trial court erred by (1) instructing the jury to find her guilty of felony murder upon a predicate finding that her friends caused Quezada's death while acting in furtherance of a misdemeanor conspiracy and (2) denying her motion to suppress a videotape of a statement she made to an officer while at the hospital in police custody. We affirm.

         Background

         It was undisputed at trial that Howard and her friend, Racquel Gonzalez, agreed to steal polo shirts from a department store. They recruited another friend, Shiquinta Franklin, to help them steal the shirts by driving Howard's vehicle as the getaway car.

         Howard picked up Gonzalez and Franklin, and they drove to the department store. Howard and Gonzalez entered the store while Franklin waited in the driver's seat of the car. Howard and Gonzalez proceeded to grab sixteen shirts off a clothing rack[1] and run out of the store, setting off the theft-prevention sensors. They jumped into the getaway car and told Franklin to go. Franklin sped out of the parking lot, and, almost immediately, the police began to pursue them.

          In an attempt to evade arrest, they led the police on a dangerous, high-speed chase on and off the highway and through residential areas, during which they ran stop signs, reached speeds of over 100 miles per hour, and passed other vehicles on the inside shoulder.

         They eventually came to a red light at an intersection on the feeder road. Gonzalez testified that she told Franklin to stop the car but that Howard told Franklin to "keep going" because she "had too much to lose." Franklin likewise testified that Howard told her to "go, go, go" through the red light. Franklin ran the red light at over sixty miles per hour and crashed into another vehicle passing through the intersection, killing the vehicle's driver, Rosalba Quezada, and injuring her three children, one seriously.

         Howard attempted to flee the accident scene on foot but was apprehended by the police and taken to the hospital. At the hospital, she was questioned by Officer R. Klementich. Howard admitted that she, Gonzalez, and Franklin had conspired to steal the shirts and then tried to evade arrest when the police began to pursue them.

         Howard was indicted for felony murder, tried, and convicted. She appeals.

         Charge Error

         In her first issue, Howard contends that the trial court instructed the jury to convict under an erroneous theory of liability. The charge's second application paragraph instructed the jury to find Howard guilty of felony murder upon a predicate finding that Franklin caused Quezada's death while acting in furtherance of a conspiracy with Howard to commit state jail felony theft. Howard argues that a conviction for felony murder cannot be based on a conspiracy to commit state jail felony theft because such a conspiracy is not itself a felony but rather a misdemeanor. The State responds that a conviction for felony murder can be based on a conspiracy to commit a state jail felony under Section 7.02(b) of the Penal Code, which establishes a conspiracy theory of party liability. According to the State, under this statute, Howard may be convicted for Franklin's felony murder of Quezada because Franklin committed the felony murder while driving the getaway car in furtherance of her and Howard's conspiracy to commit felony theft.

         A. Applicable law and standard of review

         Under the Code of Criminal Procedure, the trial court must "deliver to the jury . . . a written charge distinctly setting forth the law applicable to the case . . . ." Tex. Code Crim. Proc. art. 36.14. "The purpose of the jury charge is to inform the jury of the applicable law and guide them in its application to the case . . . ." Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). In reviewing a jury-charge issue, we determine whether error exists and, if so, whether sufficient harm resulted from the error to compel reversal. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Ryser v. State, 453 S.W.3d 17, 27 (Tex. App.-Houston [1st Dist.] 2014, pet. ref'd).

          B.The charge correctly applied the ...


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